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THE CASE OF BRIGHAiyi H. ROBERTS. 


Can a Polygamist be Excluded from the House 
of Representatives? 


speeches 


HON. ROBERT W.TAYLER, 

«» ^ 

OF OHIO, 



HOUSE OF REPRESENTATIVES, 


December 4 and 5, 1899, and January 23 and 25, 1900. 







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p. 

m 

Cong*. Reoord Of 

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10 Ja.' 01 








SPEECHES 

OP 

HON. EOBEET W. TAYLEE, 

OF OHIO, 


December 4, 1899. 

PEOCEEDINGS WHILE THE SWEARING IN OF MEM¬ 
BERS WAS PROGRESSING. 

Mr. TAYLER of Ohio (when the State of Utah was called). 
Mr. Speaker, I object to the swearing in of the Representative- 
elect from Utah and to his taking a seat in this body. I do so, 
Mr. Speaker, on my responsibility as a member of this House, 
and because specific, serious, and apparently well-grounded 
charges of ineligibility are made against him. A transcript 
of the proceedings of court in Utah evidences the fact that 
the claimant was in 1889 convicted, or that he pleaded guilty, 
of the crime of unlawful cohabitation. Aifidavits and other 
papers in my possession indicate that ever since then he has 
been persistently guilty of the same crime, and that ever since 
then he has been and is now a polygamist. If this transcript 
and these affidavits and papers tell the truth, the member- 
elect from Utah is, in my judgment, ineligible to be a member 
of this House of Representatives both because of the statutory 
disqualification, created by the Edmunds law and for higher 
and graver and quite as sound reasons. I ought also to say, 
in addition to what I have just said, that I have in my posses¬ 
sion a certified copy of the court record under which the claim¬ 
ant to this seat was supposed to be naturalized, and that emi¬ 
nent counsel assert that if that be the record in the case there 
is grave doubt if the claimant is a citizen of the United States. 
I offer and express no opinion upon that proposition. 

Mr. Speaker, if it were possible to emphasize the gravity of 
these charges and of the responsibility that is at this moment 
imposed upon this House, we will find that emphasis in the 
memorials, only a small part of which could be physically cared 
for in this Hall, but all of which I now present to the House, 
from over 7,000,000 American men and women, protesting 
against the entrance into this House of the Representative- 
elect from Utah. 

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4 

December 5 , 1899. 

REPRESENTATIVE-ELECT FROM UTAH. 

The SPEAKER. Under the order of the House on yesterday 
it is agreed that immediately after the reading of the President’s 
/aessage the House would proceed to consider the following reso¬ 
lution, which the Clerk will again report. 

The Clerk read as follows: 

Whereas it is charged that Brigham H. Roberts, a Representative elect 
to the Fifty-sixth Congress from the State of Utah, is ineligible to a seat in 
the House of Representatives; and 

Whereas such charge is made through a member of this House, on his re¬ 
sponsibility as such member and on the basis, as he asserts, of public records, 
affidavits, and papers evidencing such ineligibility: 

Resolved, That the question of the prima facie right of Brigham H. Roberts 
to be sworn in as a Representative from the State of Utah in the Fifty-sixth 
Congress, as well as of his final right to a seat therein as such Representa¬ 
tive, be referred to a special committee of nine members of the House, to be 
appointed by the Speaker; and until such committee shall report upon and 
the House decide such question and right the said Bingham H. Roberts shall 
not bo sworn in or be pei*mitted to occupy a seat in this House; and said com¬ 
mittee shall have power to send for persons and papers and examine wit¬ 
nesses on oath in relation to the subject-matter of this resolution. 

Mr. TAYLER of Ohio. Mr. Speaker, I would like to have a 
confirmation here of the arrangement made with the gentleman 
from Tennessee fMr. Richardson] as to the length of time the 
discussion on this resolution shall endure. I believe the under¬ 
standing is that one hour and a quarter on a side it to be allotted. 

Mr. RICHARDSON. Yes; or an hour and a half on a side, in¬ 
asmuch as the gentleman from Ohio insisted that the time used by 
the gentleman from Utah [Mr. Roberts] should be charged to the 
minority. We thought he ought to have his own time within 
which to present his own case, and then if we were given an hour 
that would be satisfactory. The gentleman from Ohio would not 
agree to that, and we finally asked for an hour and a half, and I 
hope the gentleman will agree to give us an hour and a half on 
this side. 

Mr. TAYLER of Ohio. The difficulty about that is that the 
hour to which the debate will run will not be fixed. I thought it 
wise to fix the time when the debate should end before we begin 
it. I suppose the member-elect from Utah will discuss the same 
side of the question as will the gentlemen represented by the gen¬ 
tleman from Tennessee, and therefore that time ought all to be 
counted together. 

Mr. RICHARDSON. I do not know what line of argument 
the gentleman from Utah will make, and I thought that he ought 
to have his own time in which to debate it. If the gentleman will 
give us an hour and a half, I think we can get through. 

Mr. TAYLER of Ohio. Mr. Speaker, speaking for myself, I 
have no objection to the gentlemen on the other side having one 
hour and a half. 

The SPEAKER. And the same length of time for your side? 

Mr. TAYLER of Ohio. The same length of time on this side. 

The SPEAKER. The proposition is for three hours’ debate, 
one-half to bo controlled by the gentleman from Ohio [Mr. Tay- 
ler] and one-half by the gentleman from Tennessee [Mr. Rich¬ 
ardson] . Is there objection? [After a pause.] The Chair hears 
none, and it is so ordered. 

Mr. RICHARDSON. It is agreed between the gentleman from 
Ohio [Mr. Tayler] and myself that the substitute we shall offer 
may be read and considered pending. 

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The Clerk read as follows: 

Whereas Brigham H. Roberts, from the State of Utah, has presented a cer¬ 
tificate of election in due and proper form as a Representative from said 
State: Therefore, be it 

Resolved, That without expressing any opinion as to the right or propriety 
of his retaining his seat in advance of any proper investigation thereof, the 
said Bidgham H. Roberts is entitled to be sworn in as a member of this Houso 
upon his prima facie case. 

Resolved f urther. That when sworn in his credentials and all the papers in 
relation to his right to retain his seat be referred to the Committee on the 
Judiciary, with mstructions to report thereon at the earliest practicable 
moment. 

Mr. TAYLER of Oliio. I understand that is merely read for 
information. 

The SPEAKER. It is read for the information of the House. 

Mr. RICHARDSON. I want it considered as pending. 

Mr. TAYLER of Ohio. 1 may want to make a motion affect¬ 
ing it. 

Mr. Speaker, I am not unmindful of the importance of the ques¬ 
tion which the House is about to decide. It is unusual, but not 
unprecedented. It ought not to be resorted to for partisan pur¬ 
poses or for trivial reasons. Nor would I urge it now if I did not 
believe that a proper sense of our duty demanded it. We do not 
undertake to determine now the right of the claimant to a seat 
here, but only whether or not he shall be halted at the bar of the 
House and await the administration of the oath of office to him 
until a committee of the House and the House itself shall determine 
that right. If upon investigation it shall develop that the claim¬ 
ant is entitled to his seat, then an injustice will be done him by 
keeping him out. But that injustice is not comparable to the 
injustice and wrong that will result to the House and to the coun¬ 
try if, being ineligible in the respects charged, he should sit for one 
hour as a member of the House. A due respect for the opinion 
of the country and for this House demands that, notwithstanding 
the preliminary character of this question, it shall be argued 
with reasonable fullness now. 

Of course, I do not need to say that in so far as such a thing is 
possible I have not prejudged this case either as to the law or the 
facts. If it shall appear that the allegations made against him be 
false, I will welcome the claimant to a place on this floor. If the 
facts be as alleged and they create no lawful ineligibility, I will 
vote to permit him to take his seat on the floor of the House. 

In the first place, I will minister to a much desired brevity and 
lucidity if I read the eighth section of what is known as the Ed¬ 
munds Act and briefly quote from the proclamation of amnesty 
made by President Cleveland and before him by President Harri¬ 
son. 

Sec. 8. That no polygamist, bigamist, or any person cohabiting with more 
than one woman, and no woman cohabiting with any of the persons described 
as aforesaid in this section, in any Territory or other place over which the 
United States have exclusive jurisdiction, shall be entitled to vote at any 
election held in any such Territory or other place, or be eligible for election 
or appointment, or to be entitled to hold any office or place of public trust, 
honor, or emolument in, under, or for any such Territory or place or under 
the United States. 

The proclamation of President Harrison, dated January 4,1893, 
has this pardoning clause: 

Do hereby declare and grant full amnesty and pardon to all persons liable 
to the penalties of this act by reason of unlawful cohabitation under the color 
of polygamous or plural marriages who, since November 1, 1890, have ab¬ 
stained from such unlawful cohabitation, but upon the express condition that 
they shall in future obey the laws of the United States hereinbefore named, 
and not otherwise. 

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6 

The proclamation of President Cleveland granted pardon in this 
language: 

To all persons who have, in violation of said act, committed either of the 
offenses of polygamy, adultery, or unlawful cohabitation under the color of 
polygamous or plural marriages, or who, having been convicted of violation 
of said act, are now suffering deprivation of civil rights in consequence of the 
same, excepting persons who have not complied with the conditions con¬ 
tained in said proclamation of January 4,1893. 

Mr. Speaker, Utah was admitted as a Stale into the Union on 
the 4th day of January, 1896. 

These are the alleged facts against the claimant: 

First. That he was indicted in February, 1887, for unlawful co¬ 
habitation, under the Edmunds Act, andipleaded guilty April 29, 
1889, and was incarcerated on that account in the penitentiary for 
four months. 

Second. That he has persistently from that time forward down 
to a recent date been guilty of the offense of unlawful cohabita¬ 
tion, and also that he has continued from the date of his convic¬ 
tion to be, and is now, a polygamist. 

Now, these propositions and questions are presented by the al¬ 
leged facts: 

First. That if he was convicted in 1889 under the Edmunds Act, 
did he not then become, and ever afterwards remain, by reason of 
section 8, ineligible to be a member of Congress unless he was 
pardoned? If he was guilty of polygamous cohabitation between 
November 1,1890, and the date of the Harrison proclamation, he 
was not pardoned by that proclamation. 

The Harrison proclamation pardoned no polygamist as such. If 
Roberts was a polygamist January 3, 1893, and prior thereto, even 
though not convicted, he did not receive pardon. 

If, after January 3,1893, and before September 25,1894, he was 
guilty of polygamy or- unlawful cohabitation, then he lost the 
benefit of the Harrison proclamation and the Cleveland proclama¬ 
tion did not affect him at all. 

If, after September 25,1894, and before January4,1896, the date 
of Utah’s admission, he was either a polygamist or unlawfully co¬ 
habited, the pardons did not affect him. 

All these things are charged, and it is claimed, on the basis of 
ex parte affidavits, can be proved. 

Second. If he has been persistently guilty of the offense of which 
he was convicted, and has been ever since up to January 4,1896, the 
date of the admission of Utah, a polygamist, is he not ineligible 
under the Edmunds law, independent of his conviction? 

Third. If he has been ever since 1889 and is now a polygamist, may 
he not be ineligible to be a member of Congress if it so wills, inde¬ 
pendent of the ineligibility created by the Edmunds law? I will 
later on give the definition by the Supreme Court of a polygamist. 

Fourth. Is it clear that the compact created between the United 
States and the people of Utah by the proclamations, enabling act, 
constitution of Utah, and the political history associated with 
these facts do not justify the House in refusing admission to the 
claimant? 

Fifth. May it not be that upon a careful examination of the law 
it will be found that the claimant is not a citizen of the United 
States? 

Sixth. Is it wise, if the facts be as alleged, except as to the 
status of the claimant as a present lawbreaker, to subject his case 
to the doubtful process of expulsion? 

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Doubtful for two reasons: 

First. Because it requires tlie concurrence of two-thirds to ex¬ 
pel him. 

Second. Because very eminent lawyers from the beginning of 
the Government down to the present time have taken the position 
that the House has no right to expel except for some misconduct 
while a member and relating to his office as a member. 

The House of Representatives has never decided that it had the 
power to expel under such circumstances, and it has decided that 
it has no right to expel under such circumstances. 

In the first session of the Thirty-fifth Congress, the Congress of 
which our honored friend and colleague, Mr. Grow, was a mem¬ 
ber, one Matteson, who had resigned in the face of a resolution of 
expulsion in the preceding Congress, came, and a resolution to 
expel him for the offense charged against him in the preceding 
Congress was introduced, was referred to a committee of which 
the gentleman from Pennsylvania [Mr. Grow] was a member, 
and that committee, by an all but unanimous voice, reported that 
the House had no power, mean and low and vile as the character 
of that man was, as exhibited by his conduct before that time, to 
expel him, because it had no right to expel a man for that which 
had occurred prior to his election to Congress. And the House, 
by a considerable majority, sustained the committee, and Matte- 
son, who was declared unfit to be a Representative in Congress 
because of his connection with certain bribers and bribe takers, 
was permitted to remain further unquestioned as a member of 
the United States House of Representatives. 

And so I give this warning to those of you who oppose the pas¬ 
sage of this resolution in the fond hope that hereafter, if these 
facts be as alleged, you may satisfy your consciences and con¬ 
stituents by voting to expel the claimant. I warn you now that 
you will have a larger difficulty to satisfy your consciences and 
your judgments that this House has power to expel the claimant 
than that it has the right and power to exclude him now. 

I shall not undertake to discuss all of the questions I have 
raised. Time forbids, and it is not otherwise necessary. 

Two broad questions are raised in this case: 

First. Is the claimant on the alleged facts eligible to be a mem¬ 
ber of Congress? 

Second. Can the question of his eligibility be raised when he 
comes to the bar to be sworn, and can he be required to stand 
aside until the House shall have investigated the question of his 
right to take the seat? 

On the first proposition, as to the question of eligibility, v^e must 
inquire first whether Congress or the House has power to impose 
qualifications in addition to those enumerated in the Constitution; 
second, whether Congress has imposed any qualification—if it has 
that right; and third, has the House, independent of any previously 
enacted law, the right to impose a qualification or declare a dis¬ 
qualification when a member-elect comes to the bar? 

There are six different provisions in the Constitution respecting 
qualifications of a member of Congress. First, that he shall not 
be a member unless he shall have attained the age of 25 years; 
second, he shall have been a citizen of the United States for seven 
years; third, that he must bo an inhabitant of the State where 
chosen; fourth, that he may be disqualified by judgment in cases 
of impeachment; fifth, a person holding an office under the United 
States shall not be a member of either House of Congress; and 
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sixth, the provision in the constitutional amendment respecting 
those who have taken an oath inconsistent with their acts during 
the war of the rebellion. 

There is no decision of the United States Supreme Court upon 
the question as to whether Congress has the power to add to the 
qualifications named. There has been much academic discussion 
of the subject. Some very excellent authority has declared that 
Congress has no such power. But, notwithstanding a feeling of 
reverence for the opinion of some men, I shall proceed briefly to 
combat that position. 

Our State courts in many instances have construed exactly sirui- 
lar provisions. The supreme court of the State of New York, in 
the case-of Rogers vs. Buffalo, in an opinion rendered by Mr. Jus¬ 
tice Peckham, who now adorns the bench of the Supreme Court 
of the United States, held that a provision of the constitution 
declaring certain qualifications for office was not exclusive and 
did not bar the legislature from imposing new, reasonable, and 
proper qualifications. 

In a very learned opinion by one of the ablest judges that ever 
sat on the bench in Ohio, Judge Mcllvaine, in the case of Ohio 
against Covington, the same doctrine is explicitly and carefully 
and most forcibly laid down, and in the case of Darrow against 
The People, in 8 Colorado, where a negative provision of the con¬ 
stitution exactly similar in its rhetorical construction to that I am 
now discussing was under consideration, it was held that as the 
provision of their constitution was negative it imposed no restric¬ 
tion whatever upon the legislative body. 

But I find stronger intrinsic argument right in the body of the 
Constitution itself against this authority to restrict the power of 
the House. 

In the first place, the language providing for the age, and so on, 
is negative in its character. No person shall become a member of 
Congress unless he is of a certain age, etc. And that clause of the 
Constitution was most ably and ingeniously and persuasively 
argued in 1807 upon the floor of the House of Representatives by 
John Randolph. I think no man can read that argument without 
being convinced at least as to the power of Congress. 

But, in the next place, I want to call your attention to the last 
paragraph of Article VI. Here we have the argument, by analogy, 
that, in my opinion, modestly put forward, is conclusive upon the 
question of construction: 

The Senators and Representatives before mentioned, and the members of 
the several State legislatures, and all executive and judicial officers, both of 
the United States and of the several States, shall be bound by oath or affir¬ 
mation to support this Constitution. 

There is a positive affirmative declaration by the Constitution 
that a certain oath shall be administered to certain officers. If the 
construction contended for as to the qualification of members of 
Congress is correct, then Congress has no power to demand any 
other oath of any officer named in this section than that which is 
named in it. 

Mr. Chief Justice Marshall had occasion to refer to that when 
he said, in the case of McCullough against Maryland, one of the 
greatest expositions of the Constitution to be found in the reports 
of the Supreme Court: 

He would be charged with insanity who should contend that the legis- 
latm-o might not superadd to the oath directed by the Constitution such other 
oath of office as its wisdom might suggest. 

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Now, if John Marshall characterized as insanity a proposition 
that a positive declaration of the Constitntion respecting an oath 
could not he added to, I shudder to think what word he would 
have used had he been referring to the mere adding to a negative 
expression of the Constitution. 

But that same clause has another paragraph in it: 

But no religious test shall ever be required as a qualification to any office 
or public trust under the United States. 

Now, if the Constitution had laid down all the qualifications 
which Congress or any other power had the right to impose, then 
it was unnecessary they should go on and declare that no religious 
test could be required. The Constitution is inconsistent in its 
parts and contradictory of itself if it be true that it meant that 
no qualification should be added except those named. If without 
the provision about a religious test such test might have been re¬ 
quired, then the asserted interpretation of the qualification clauses 
falls to the ground. The presence of the religious-test clause is 
only to be explained and justified on the ground that without it 
Congress would have had the power to impose it. 

But the construction here contended for has often been asserted 
and passed upon by the House of Representatives in numerous cases 
that have been here decided. I shall not advert to them specif¬ 
ically now, for the reason that they become more pertinent as we 
proceed to the second broad question as to our right to stop the 
claimant at this point. But our statutes are full, fairly swarming 
with penal provisions declaring that persons who have committed 
certain offenses are ineligible to office or place under the United 
States; and all down along the line, from the very first Congress 
that sat, down until we had a complete penal system, Congress 
has reco^ized, and it has not been disputed, the right to declare 
persons ineligible to office for the commission of crime. 

But, Mr. Speaker, I do not need for the purpose of this case to 
stand upon the broad right of Congress to add qualifications to 
those named in the Constitution. The ineligibility created in con¬ 
nection with the punishment of crime may and does arise out of 
the power inherent in Congress to punish crime; and in its spirit 
this does not conflict with the Constitution. It bars the way to no 
man against his will; it conflicts in no sense with the freedom of 
any man to follow any pursuit he pleases, and to put himself in 
any class which he may desire to put himself in. The ineligible 
class created by penal statutes is one that no man can enter with¬ 
out committing a crime. Do you think it violates either the letter 
or the spirit of the Constitution to say that no free agent who has 
every right that the laws or the Constitution ought to give to any 
man shall be barred from office unless he willfully goes into the 
criminal class? 

Now, that proposition is not without authority. It is most 
cogently stated and reasoned and laid down in the well-known 
case of Barker against The People in 3 Cowen. I ought to say 
at this point that in that case the court first held—although it did 
not need to so hold—that every man was eligible for office who 
was not specifically disqualified by the Constitution. It thus 
directly opposes the position I took a moment ago; but the court 
goes on to elaborately show that in the way of punishment for 
crime the legislature had ample power and authority to disqualify. 

But I ought also to say that Mr. Justice Peckham, in the case 
of Rogers against Buffalo, to which I referred a few moments ago, 
left nothing standing of the law in the Barker case except the 
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proposition that I stand on here—that we may disqualify for 
crime—and pointed out most clearly that the position taken in 
that case, in so far as it meant to declare the want of power in the 
legislature to add to the constitutional qualifications, was wrong, 
but that tho legislature could not add arbitrary conditions, such 
as that no man who was a physician could be a candidate for 
office, and so on. 

In the second place, under this head: Has Congress imposed any 
such qualification as apply to the claimant? 

I have already read section 8 of the Edmunds Act. That law is 
in force to-day.' It is a penal law of present operation in all of its 
parts over the Territories and the District of Columbia, and as to 
one who has rendered himself amenable to the punishment part of 
it it is operative everywhere where one is now that has been con¬ 
victed under that law. That law has been held constitutional in 
the case of Murphy against Ramsey, in 114 U. S. Reports, page 
15. It will be noted that that act makes ineligible not only one 
guilty of unlawful cohabitation, but also a polygamist, and does 
not require any conviction in either case. The charge is that the 
claimant was convicted of the first offense, and that he is now 
and has been for years a polygamist. Now, what is a polygamist? 
We are not in doubt as to that. The Supreme Court of the 
United States has made very clear what that is, and I will be par¬ 
doned for reading now very briefly what it has said. I make the 
following quotation from Murphy vs, Ramsey (114 U. S., pages 41 
and 42): 

In our opinion any man is a polygamist or bigamist, in the sense of this 
section of the act, who, having previously married one wife, still living, and 
having another at the time when he presents himself to claim registration 
as a voter, still maintains that relation to a plurality of wives, although from 
the date of the passage of the act, March 2:J, 1882, until the day he offers to 
register and vote he may not in fact have cohabited with more than one 
woman. Without regard to the question whether at the time he entered 
into such relation it was a prohibited and punishable offense, or whether by 
reason of lapse of time since its commission a prosecution for it may be 
barred, if he still maintain the relation, he is a bigamist or polygamist, 
because that is the status which fixed habit and practice of his living has 
established. He has a plurality of wives, more than one woman whom ho 
recognizes as a wife, of whose children he is the acknowledged father, and 
whom with their children he maintains as a family, of which he is the head. 
And this status as to several wives may well continue to exist, as a practical 
relation, although for a period he may not in fact cohabit with more than 
one; for that is quite consistent with tho constant recognition of the same 
relation to many, accompanied with a possible intention to renew cohabitation 
with one or more of the others when it may be convenient. 

It is not, therefore, because the person has committed the offense of big¬ 
amy or polygamy, at some previous time, in violation of some existing stat¬ 
ute, and as an additional punishment for its commission, that ho is disfran¬ 
chised by the act of March 22,1882; nor because he is guilty of the offense, as 
defined and punished by the terms of the act; but because, having at some 
time entered into a bigamous or polygamous relation, by a marriage with a 
second or third wife, while tho first was living, he still maintains it, and has 
not dissolved it, although for the time being he restricts actual cohabitation 
to but one. He might, in fact, abstain from actual cohabitation with all, and 
still be much as ever a bigamist or polygamist. He can only cease to be such 
when he has fully dissolved in some effective manner, which we are not 
called on here to point out, the very relation of husband to several wives 
which constitutes the forbidden status he has previously assumed. 

Cohabitation is but one of the many incidents to tho marriage relation. It 
is not essential to it. One man, where such a system has been tolerated and 
practiced, may have several establishments, each of which may be the home 
of a separate family, none of which he himself may dwell in or even visit. 
The statute makes an express distinction between bigamists and polygamists 
on the one hand and those who cohabit with more than one woman on the 
other; whereas, if cohabitation with several wives was essential to the de¬ 
scription of those who are bigamists or polygamists, those words in the stat¬ 
ute would be superfluous and unnecessary. It follows, therefore, that any 
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person having several wives is a bigamist or polygamist in the sense of the 
act of March. 33,1883, although since the date of its passage he may not have 
cohabited with more than one of them. 

Now, I have already stated, and I shall not go on further with 
it, as to the operation of the two proclamations of amnesty. It is 
enough for me to say that if the facts be as alleged, the claimant 
is in no better position than if no proclamation for amnesty had 
ever been issued. 

Finally, upon this subject of ineligibility—and I ask the 
attention of the House to these measured words—if we con¬ 
sider the great powers of this House, unrestricted save by the 
Constitution, we shall see that it can impose qualifications and 
declare ineligibilities probably sufficient where crimes or of¬ 
fenses against civilization are concerned, to justify it, and in 
some instances to command it, to refuse admission to persons 
thus tainted. 

If I am correct in this interpretation of our rights and power, 
it is not difficult to find its just application to the asserted facts 
in this case. For all such exercise of power by Congress those 
who participate in it are answerable only to their consciences, 
their constituents, and their country. 

Mr. Speaker, we are not without precedent upon that proposi¬ 
tion. This House, so far from denying this power to act along 
the line that I have just suggested, has declared its right to exer¬ 
cise that power. In the Forty-first Confess Mr. Whittemore, of 
South Carolina, for some charge of selling cadetships, was under 
the ban of the House. A resolution to expel him was about to be 
adopted when he resigned, and the House lost its jurisdiction and 
could only pass a resolution of censure. Within six weeks from 
the date of his resignation he came to the bar of the House with 
a certificate under the broad seal of the State of South Carolina, 
exact, perfect, unquestioned, claiming his right to a seat under 
and by virtue of a new election at the hands of the constituency 
who knew his offense and sent him here as their representative. 

Mr. Speaker, that man had committed a crime, but it was a crime 
which carried with it ineligibility, possibly not for Congress at 
all, and never except after due conviction in the courts of justice 
in a constitutional manner. But the House did not allow itself 
to be thus hedged in by any inferior authority. It did not even 
wait to do the things that we want done here. The House not 
only did not suspend the administration of the oath until a com¬ 
mittee might examine the question and the House later determine, 
but it said to him then and there, “ You shall not now or ever 
be sworn; ” and his credentials were thrown back in his teeth and 
he never took his seat. That is a case as parallel as two cases can 
be to the case that we make here, with this difference: Instead of 
giving the committee time to answer the question whether he was 
entitled to take the oath of office, they decided it right then and 
there and sent him back to his people. 

This case I take up at this point as sustaining the general prop¬ 
osition I just made, and also as sustaining the second proposition, 
that the House has the right to halt a man on the ground of ineli¬ 
gibility and declare that he shall not take the oath of office until 
the question of his eligibility has been answered. 

Now, the power and right of the House in this respect are inher¬ 
ent and can not be questioned. It is only a question of propriety; 

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it is only a question of expediency; it is only a question of parlia¬ 
mentary wisdom in order that no unwise precedent may be created 
for a later day. There has been much loose talk in the newspapers 
and elsewhere about the right and power of Congress and its duty 
in this regard, and as to what it has done. I do not want to make 
the statement as absolutely correct, but to this extent: I assert 
that in so far as my investigation has gone, and it has covered 
hundreds of cases and many volumes of the Record and Globe, I 
can find no instance where the House of Representatives has de¬ 
clared that it has not the right and that it ought not to halt a man 
at the bar of the House when the question of his eligibility was 
raised. 

On the contrary, Mr. Speaker, I have, besides the case to which 
I have already referred, many others which explicitly declare the 
right of the House to do just this very thing, and where the House 
did it and refused to permit the oath to be administered to the 
applicant. 

The general doctrine on this subject is laid down in McCrary’s 
Law of Elections. I read from that not because the citation ap¬ 
pears in Judge McCrary’s work, but because I have read speeches 
of, I think, a hundred eminent lawyers and statesmen on the floor 
of the House where the doctrine laid down by McCrary has been 
declared and sustained, and I assert that the instances where a 
contrary doctrine is sought to be asserted by any speaker on the 
floor of the House, or any lawyer of eminence throughout the 
country, are so small and so few as to be swallowed up and over¬ 
whelmed in the flood of contrary opinion as laid down by the best 
writers and speakers of the day. 

McCrary says—and the first two sentences seem to be all that 
some people have read on this subject: 

The regular certificate of election properly signed is, as we have seen, to be 
taken as sufficient to authorize the person holding it to be sworn in. It is 

E rima facio evidence of his election, and the only evidence thereof which can 
e considered in the first instance and in the course of the organization of a 
legislative body. But there are questions which may be raised touching the 
qualifications of a person elected which may be investigated and decided as 
a part of the prima facie case and as preliminary to the swearing in of the 
claimant. 

Tnnc.—If a specific and apparently well-grounded allegation be presented 
to the House of Representatives of the United States that a person holding a 
certificate of election is not a citizen of the United States, or is not of the 
requisite age, or is for any other cause ineligible, the House will defer action 
upon the question of swearing in such person until there can bo an investi¬ 
gation into the truth of such allegation. 

It is necessary, however, that such allegation should be made by a respon¬ 
sible party. It is usually made, or vouched for at least, by some member or 
member-elect of the House. It is to bo presented at the earliest possible 
moment after the meeting of the House for organization, and generally at 
the time that the person objected to presents himself to be sworn in. The 
person objected to upon such grounds as these is not sworn in with the other 
members, but stands aside for the time being, and the House, through its 
committee, with all possible speed proceeds to inquire into the facts. 

The certificate of election does not ordinarily, if ever, cover the grounds of 
the due qualifications of the person holding it. It may be said that by de¬ 
claring the person duly elected the certificate by implication avers that he 
was qualified to be elected and to hold the office. But it is well known that 
canvassing officers do not in fact inquire as to the qualifications of persons 
voted for; they certify what appears upon the face of the returns and noth¬ 
ing more. 

This action, as I have said, Mr. Speaker, has been sustained 
time and time again on the floor of the House with the over¬ 
whelming mass of declarations and testimony of the ablest men 
of the country, to which I have already referred. 

A most elaborate Congressional discussion occurred in the 

4009 


13 


Fortieth Congress as to the Kentucky election. This Congress 
met in special session on the 4th of March and adjourned to a 
fixed date about the 1st of April. Immediately after this elec¬ 
tions were held in the State of Kentucky. On the 3d of July the 
Kentucky members presented themselves and demanded the right 
to be sworn in as members of the House under the House rules. 
But the House refused to permit them to be sworn in on the 
ground that they had been disloyal—that is to say, on the ground 
that they suffered from some ineligibility. This was not an 
ineligibility created by the Constitution itself, nor created by any 
existing law of Congress, but because the House held them to be 
ineligible for the reason that they had been disloyal. The cases 
were discussed in page after page in the Globe. Report after 
report was filed in connection with the cases. 

The discussion proceeded for some time upon the motion to re¬ 
fuse to administer the oath and to refer the cases to the Committee 
on Elections. 

Representative Bingham, chairman of the Judiciary Committee, 
on page 472, said: 

I submit as a question of order that the resolution by my colleague, Mr. 
Schenck, is a resolution which goes to the qualification of the member named. 
The State is entitled to representation upon the presentation of its certificate 
under its grand seal, and the members are entitled to be sworn in according 
to the usual precedents of this country, unless special charges be made show¬ 
ing them not entitled or disqualified. They have the right to be sworn in 
unless there be presented specific cause against them, in which case, I say, the 
case ought to be referred to the committee, as proposed by my colleague. I 
believe my colleague has presented the question exactly according to the 
established precedents. 

Mr. Schenck, on page 477, says; 

The House is not asked to declare that John D. Young is not entitled to a 
seat here, but it is asked to declare upon this showing that he shall not be per¬ 
mitted now to take the oath, but shall stand back until some inquiry shall be 
made into the truthfulness of these allegations and a report made to the House 
upon which it can understandingly determine the question ultimately and 
finally. 

On page 479 Mr. Boutwell says: 

I think we are justified in taking this position: That when a member rises 
in his place and states that of his own knowledge or upon information worthy 
of belief a person presenting himself here for a seat in this House is or has 
been substantially a traitor to his Government, we have a right to decline to 
allow that person to take the oath until that matter has been investigated 
and he has been relieved from the charge. 

Many other members made arguments of like character, and it 
will be difficult to find any serious objection at that time to the 
action of the House on that ground. The resolution was adopted, 
and the case went to the Committee on Elections. 

On the 5th of July Mr. Marshall rose to a question of privilege, 
and moved that in the cases of Beck and Grover the Committee on 
Elections be discharged from further consideration of the question 
submitted to them. At this time Mr. Dawes, of Massachusetts, 
entered the discussion. Mr. Dawes was then the oldest member 
in respect to service in the House, had been chairman of the Com¬ 
mittee on Elections for ten years or more, and may safely be said 
to be as high authority on the law pertaining to this case as any 
man who has ever sat in the House of Representatives. 

He takes occasion in this debate to state in various forms his 
views, but the shortest statement of the proposition is found on 
page 502, in answer to a question from Mr. Wood, of New York. 
He said: 

A well-grounded charge made in good faith against any man bringing a 
certificate here which extends in its scope to his qualification to sit as a mem- 

4009 


14 

ber of this House should be heard before he is permitted to take the oath of 
office or occupy a seat. 

Mr. Bingham again, on page 503, reasserts that— 

■WTjen a charge is made in due form either upon the responsibility of a 
memlr»r or by petition and ex parte affidavit against a person or persons 
claimiii^ to bo elected as members of this House from an organized State, 
the case ought to be referred to a committee, and the presentation of such 
a case, going to the qualifications of a person presenting himself as a mem¬ 
ber, ought to suspend the administration of the oath to him. 

Mr. Dawes’s contention was sustained by the House (page 514). 

The committee in that case in its preliminary report held: 

That any specific and apparently well-grounded charge of personal dis¬ 
loyalty made against a person claiming a seat as a member of this House 
ought to be investigated and reported upon before such person is permitted 
to take the seat. 

On the 17th of July Mr. Brooks rose to a question of privilege 
respecting the same subject. The discussion proceeded as before, 
but the immediate question was whether the withdrawal of an 
affidavit by one of the ex parte witnesses affected the case. 

Mr. Dawes more than once in this discussion, on page 700, de¬ 
clares the right to refuse to swear in a man against whom a well- 
grounded charge of disqualification is made. What he said in 
one instance is especially applicable here: 

I submit that that gentleman [referring to another member] has already 
committed himself to the doctrine that no matter what crime a man may 
have committed against his country, he has the right to come here and take 
a seat in this House, to sit here in mockery of the authority of the Govern¬ 
ment, pretending to make laws in its support. 

He says again, on the same page: 

When there is presented alongside of the certificate a case which leads 
members here, clothed by the Constitution with the power and duty of pass¬ 
ing lapon the qualifications of those who apply for admission—when there is 
presented alongside of such a certificate such a case as leads us to suppose 
that there is good reason to believe that the man presenting himself is dis¬ 
qualified. it is the duty of those whom the Constitution requires to pass upon 
the qualifications of members to stop at this initial point and pass upon that 
question. 

On the 21st of November, 1867 (Globe, volume 64,page 768), the 
members-elect from Tennessee were called. Mr. Eldredge objected 
to swearing in of Mr. Stokes, and moved that his credentials be 
referred to the Committee on Elections. 

The only charge against Stokes was that he had written a letter 
in May, 1861, containing disloyal sentiments, but it was shown 
that after that ho had fought for two years in the Union Army. 
He was seated, as he ought to have been. 

Mr. Brooks objected to the swearing in of Mr. Butler, Mr. Mullen, 
and Mr. Arnell, of Tennessee. There was an extended discussion, 
the facts in each case presented, and the House passed the follow¬ 
ing substitute on a yea-and-nay vote of 117 yeas and 28 nays, as 
follows: 

That the credentials of R. R. Butler, of the First district of Tennessee, be 
referred to the Committee on Elections, and that he be not sworn in pending 
the investigation. 

On the 21st of November, in the discussion of the Tennessee case, 
page 774, Mr. Schenck gives his second well-considered approval 
of the doctrine. 

On page 777 Mr. Shellabarger, of Ohio, puts himself on record 
as sustaining the doctrine of the committee. 

On December 3 the committee filed a second report, found in 2 
Bartlett’s Election Cases, page 368. In this report the committee 
assert that they adhere to the views expressed in the first report, 
on the ground that the House is the judge of the qualifications of 
4009 


15 


its members, of which fidelity to the Constitution is one, and that 
such charge should be investigated before such person is permitted 
to take the seat. 

The committee calls attention to the fact that the House con¬ 
curred. in that view of the committee. 

Again, in a report filed January 7,1888, the committee an¬ 
nounces its continued adherence to the rule previously laid down. 

In a report made January 21,1868, by Mr. Dawes (page 405, 2 
Bartlett), in the John Young Brown case, a very elaborate re¬ 
port, the same doctrine is laid down, and a resolution was reported 
that Brown was not entitled to take the oath of office or to hold 
the seat. 

In the case of McKee vs. Young (page 434) the same kind of a 
resolution was presented. This report was made March 23, 1868, 
and laid down the same doctrine of ineligibility. 

On the 31st of January, 1868, the case of Smith vs. Brown came 
up for discussion in the House, and continued for some days. 

The questions were elaborately discussed, especially by Mr. 
Dawes. (See pages 894, 895. ) 

Of course at that time the immediate question to determine was 
as to the general right of Brown to take his seat, and not the ques¬ 
tion as to the right to halt him at the bar of the House during the 
organization and refuse to administer the oath. Nevertheless the 
same question is involved in the lengthy discussion which fol¬ 
lowed. 

On page 899 Mr. Shellabarger’s views are very succinctly put in 
a letter which he wrote while absent from Washington. 

A very able and instructive discussion is found in the speech of 
Mr. Cook, especially on page 909. 

The final argument made by Mr. Dawes will be found in vol¬ 
ume 69, page 149, Appendix, Fortieth Congress. 

Then in the same Congress we find also the case of Winches¬ 
ter and Rice. That was in the next Congress, but the time is 
unimportant. This is the case of Winchester and Rice, from the 
State of Kentucky, which came up on the credentials in the midst 
of the organization of the House, when only about one-half of the 
members had been sworn in. Objection was made to the swearing 
in of Winchester on the ground that there was an indictment 
pending against him in the United States court in Kentucky, 
charging him with disloyalty, and a similar charge against Rice. 

An effort was made to have them stand aside by consent. They 
refused to do it. A resolution was offered that their cases be sent 
to a committee, and pending the examination of the case by the 
committee that they be not permitted to be sworn in or take seats. 
The previous question was demanded; the previous question was 
ordered by a yea-and-nay vote of the House of 96 to 48, and the 
main question, which had actually been settled by the calling and 
settling of the previous question, was about to be put, when Win¬ 
chester and his companion asked that the case go over until the 
next day. The next day they came in, and it was apparent from 
a moment’s examination of the testimony that they presented 
that there was nothing in the charge of disloyalty. 

The indictment against Winchester had been dismissed. There 
was no eharge against him; but, nevertheless, the House had taken 
hold of the question. It had passed upon the question, had as¬ 
sumed and kept jurisdiction of the question, and beyond any sort 
of controversy would in another instant have sent those cases to 
the committee had they not voluntarily withdrawn. 

1009 


16 


Somewhat more in detail the proceedings connected with the 
organization of the Forty-first Congress are as follows: 

At the organization of the House of Representatives in the 
Forty-first Congress, on the 4th of March, 1869 (Globe, volume 74), 
after the election of a Speaker, Mr. Butler of Massachusetts, 
when Maryland was called (page 5), objected to the swearing in 
of Patrick Hamil, of that State, on a charge of disloyalty. A 
discussion followed, and pending that the other members who had 
been called were sworn in. 

Finally the Speaker suggested that Mr. Hamil step aside for the 
present, which was done. 

When the State of Kentucky was called (see page 6), Mr. Shanks 
objected to the swearing in of Boyd Winchester and John M. Rice 
on the ground that they had been disloyal, and that Winchester 
was under indictment for disloyalty. 

The Speaker suggested that the gentlemen whose right was 
challenged waive the claim of their right to be sworn in until 
the other members had taken the oath. 

Mr. Eldredge hoped that those gentlemen vrould not yield their 
right; thereupon the Speaker said: 

Then the question must be decided now. The Clerk will present the reso- 
hition of the gentleman from Indiana, Mr. Shanks. 

The resolution was therefore read, referring the cases to the 
Committee on Elections, and that pending such inquiry Win¬ 
chester and Rice should not be svv’orn in as members. 

Mr. Shanks called for the previous question. While the vote 
was being taken on ordering the previous question, Mr. McCor¬ 
mick raised the point of order that those who had not been sworn 
in could not vote. The Speaker refused to entertain the point, as 
the House was dividing. 

The question then came up on ordering the main question. 
Mr. Eldredge called for the yeas and nays, which were ordered. 

On ordering the previous question there were—yeas S6, nays 48; 
80 the previous question was ordered. Then Mr. Eldredge raised 
the point of order that none but those sworn in had the right to 
vote. The Speaker overruled the point of order, and held that 
those not sworn could vote. 

It was not until this point that, at the suggestion of one of the 
Kentucky members, Messrs. Winchester and Rice withdrew for 
the time being for the sake of removing any obstacle to the prog¬ 
ress of business. 

The House, however, having ordered the previous question on 
the jjroposition to send their cases to the Committee on Elections 
before being sworn in, and the Chair having held that all mem¬ 
bers-elect were entitled to vote on the proposition, it is apparent 
that it put itself squarely in favor of halting at the bar of the 
House a person charged with ineligibility, and sending his case 
at once to the committee. 

On the following day (see page 13) a resolution was otfered by 
Mr. Beck that Messrs. Winchester and Rice be now sworn in. 
He accompanied his resolution with a statement showing that the 
charges against them were untrue, and that the indictment re¬ 
ferred to in the proceedings of the day before had been dismissed. 

Mr. Shanks, who made the objection, admitted that there was 
a fair presumption that there was nothing in the case. The 
resolution was adopted, and Messrs. Winchester and Rice Avere 
sworn in. 

4009 


17 


Objection was also made on the first day to the right of Van¬ 
horn and Dyer, of Missouri, to be sworn in; but the only reason 
given for objecting was that they Avere not actually elected—no 
question of qualification arising. 

Messrs. Vanhorn and Dyer, after a brief discussion, temporarily 
withdrew. 

Mr. Lawrence objected to the swearing in of Mr. Rogers as a 
member from the Second district of Arkansas, but his statement 
of the case showed only a claim of unfair election. 

Mr. Garfield said: 

I desire to ask my colleague if all that he is now reading or suggesting 
from that paper is not clearly a matter that relates to the contest as to the 
ultimate right of this gentleman to his seat, and not to the prima facie right 
on the credentials to be sworn in as a member. It seems to me that this 
person has a right to be sworn in if his credentials are regularly witnessed 
and there be no personal objections which would prevent him from taking 
the oath. 

On motion of Mr. Farnsworth, Mr. Lawrence’s resolution was 
laid on the table, and Mr. Rogers was sworn in. 

At this point the House adjourned. 

On the reassembling of the House a resolution was adopted noti¬ 
fying the Senate that the House had assembled, chosen a Speaker, 
and that it was ready to proceed to business. 

This notwithstanding no other officers of the House had been 
elected. 

Thereupon the cases of Vanhorn and Dyer came up on a reso¬ 
lution that they be sworn in. 

Mr. Benjamin observed (see page 10) that in these cases there 
was no point raised as to the eligibility of these parties to occupy 
seats in the House. It was a question of election, and of course 
would go to the Committee on Elections, but they were entitled to 
be sworn in. 

A motion to lay the resolution on the table was defeated by a 
vote of 4 yeas to 163 nays. 

This shows that the House took complete jurisdiction of the sub¬ 
ject of swearing in the men, and permitted them to be sworn in 
upon a manifest theory. It was a question merely as to their elec¬ 
tion, and not as to their eligibility. 

Mr. Butler withdrew his objection to the swearing in of Hamill, 
of Maryland, because he said he had examined the affidavits and 
evidence in the case and thought that the prima facie case as 
made by the certificate ought at this time to prevail. 

The case was sent to the Committee on Elections and was never 
heard of again. 

Later, the same day, Mr. Farnsworth (page 18) moved that the 
members from Georgia be sworn in. After considerable discus¬ 
sion, Mr. Farnsworth modified his resolution, ordering a reference 
of the credentials and papers of the Georgia members to the Com¬ 
mittee on Elections when appointed, with directions to report to the 
House whether their papers present a prima facie right to their seats. 

These members were therefore not permitted to be sworn in, 
but their cas^s passed over under che resolution. 

Thereupon a motion was made that the House now proceed to 
the election of Clerk, Sergeant-at-Arms, etc. 

Before the motion was put Mr. Butler, of Tennessee, rose to a 
question of privilege and asked leave to present the credentials of 
Mr. Rogers, of Tennessee, claiming a seat as Representative from 
that State. 

The Speaker refused to entertain it as a question of privilege, 
40W-3 




18 


holding that it was not as high a question as the election of offi¬ 
cers. Thereupon the House proceeded to elect its officers. 

I make the following comments on the proceedings connected 
with the organization of the Forty-first Congress: 

(1) After the election of the Speaker, and before all the members 
were sworn in, the body proceeded to consider questions of the 
right of members-elect to be sworn in. Some it permitted to be 
sworn in. 

As to Winchester and Rice it practically decided that their cases 
could be sent to the committee to determine their right to take 
the oath as well as the right of members-elect to a seat, though 
their credentials were perfect. 

(2) In the Georgia case the same thing was done, although it 
ought to be said that the ground for not settling it at that time 
was because it was evident that a good deal of time would be 
spent in the discussion. 

(3) The Speaker held that all the members-elect had the right 
to vote, whether they had been sworn in or not. It is to be pre¬ 
sumed that this ruling did not mean that a member-elect had a 
right to vote on his own case. 

(4) Before all the members who had been requested to stand 
aside had been sworn in, and when the only officer elected was 
the Speaker, the Senate was notified that the House had chosen 
the Speaker and was ready to proceed to business. 

(5) A committee was appointed to join with a like committee 
from the Senate to make the usual notification to the President. 

(6) The question of the right of the Louisiana members to be 
sworn in was, before the election of the other officers, referred to 
the Committee on Elections. 

In this case, hovs^ever, there was question as to whether the cre¬ 
dentials on their face were sufficient. 

(7) The Speaker refused, on the raising of the question of privi¬ 
lege, to permit Mr. Rogers, of Tennessee, to be sworn in after a 
motion had been made, but not put, that the House proceed to the 
election of the other officers. 

On the 30th of March, 1870 (Globe, volume 77, page 2299), the 
credentials of J. C. Connor, claiming a seat as Representative from 
the State of Texas, were referred to the Committee on Elections. 

There seems to have been no demand on the part of Connor to be 
sworn in. 

On page 2322 the Committee on Elections, on March 31, 1870, 
reported in favor of administering the oath to the Representatives- 
elect from the State of Texas, including Mr. Connor. 

Notwithstanding this report on his prima facie right, an effort 
was made to offer an amendment that Connor be not sworn in, 
but that his case be referred to the Committee on Elections, with 
instructions to report both on the prima facie right and on its 
merits. 

The ground for this resolution was stated to be that Connor, 
whose certificate v>"as in due form, had committed some offense for 
which he had been tried by a military court of inquiry and ac¬ 
quitted. 

Mr. Butler, of Massachusetts, appears in this case as the cham¬ 
pion of the proposed amendment and against permitting Connor 
to be sworn in, notwithstanding the report of the committee. 

Mr. Dawes spoke on the question, declaring that this was a very 
different case from those which came from Kentucky in the For¬ 
tieth Congress, and repeated his statement of the right and duty 
4009 




19 

of the House where question is made as to the qualification of a 
person asking to be sworn in. 

Many other members took the same ground, but declared that 
the rule did not apply, as it certainly did not, to a case such as 
they had under consideration. 

In the discussion over the Connor case no serious question seems 
to have been raised as to the right to stop a member-elect at the 
bar and refuse to swear him in if the charge of ineligibility was 
made. 

Mr. Banks, on page 2328, asserted the view that while it was not 
wise always to exercise the high prerogative of refusing to swear 
a man in, yet that the House had the undoubted power, and that 
it ought not by any decision ever to seem to doubt or deny its ex¬ 
istence. 

Mr. Garfield took the same view, on page 2326, saying: 

My friend will allow me to say that we may pro back of the certificate in 
anything that touches the constitutional right of a member to a seat. 

The resolution reported by the committee in the Connor case 
was adopted. 

At the organization of the Forty-second Congress, March 4,1871 
(Globe, volume 85, page 6), when the name of Alfred M. Wad¬ 
dell, of North Carolina, was called, after the election of Speaker, 
Mr. Maynard objected to his being sworn in on the ground that 
he was personally disqualified. 

The Speaker said: 

Following the course adopted in the organization of past Houses, the Chair 
will first swear in those members against whom no objection whatever is 
presented, 

and the Speaker later on held that Mr. Maynard had the right to 
make the objection, notwithstanding the fact that he had not been 
sworn in. 

Mr. Waddell accordingly stood aside. No further effort was 
made in Mr. Waddell’s case until after the organization was com¬ 
pleted by the election of the other officers. 

Accordingly, later in the same day his case was called up and 
decided on its merits, so that he was permitted to be sworn in. 

In the discussion of this case Mr. Maynard, who had objected, 
said: 

As to whether we shall refer his case to the Committee on Elections or 
whether we will swear him in, 1 have felt bound from a knowledge of the 
facts disclosed to me by a gentleman from North Carolina to make presenta¬ 
tion of the case to the House that we might follow the same course as in the 
last Congi’ess and in the Congress before the last, as well as in the Thirty- 
ninth Congress. It is a safe, prudent, wise, and judicious course, as the expe¬ 
rience of the last few years has clearly demonstrated. If this gentleman shall 
be found able to stand the ordeal of that examination, he can be admitted on 
the removal of his disabilities. 

Although Mr. Maynard grounded his objection on this personal 
disqualification and the right of the House to administer the oath, 
no person controverted that position; but the House passed upon 
the question of his disqualification; consequently he was entitled 
to be sworn in. 

On the same day, after the election of the Speaker and before 
the other officers had been elected, an objection was made to the 
swearing in of the Representatives from Tennessee on some ground 
connected with the validity of the law under which they were 
elected: but objection was later on withdi*awn and the members- 
elect were sworn in. 

Objection was then made to the Mississippi delegation. This 
40 J9 


20 


involved only the question of manner of election. Mr. Bingliam, 
during the debate (on page 9), says: 

I trust, sir, the day is past for challenging the right of any State in this 
Union to representation on the floor of Congress when her Representatives 

{ )resent themselves with certificates prima facie entitling them to seats, un- 
ess the persons so presenting themselves should be challenged as disqualified 
under the Constitution and laws of the United States. 

Again, Mr. Bingham (on page 10) saj^s: 

According to the traditions of the Republic, when persons come lo the bar 
of this House as Representatives of organized States with a prima facie case 
of election, and whose personal qualifications are not challenged, it is not 
usual to deny their admission for the discharge of their duties upon this 
floor; but it is usual, on the contrary, to admit them and allow them to be 
sworn in. and if a question arises such as that suggested by the gentleman 
from Indiana, to wit, an irregularity in the election, it is referred uniformly 
to the Committee on Elections to ascertain the facts. 

Of course this delegation was sworn in and their credentials 
referred to the Committee on Elections. 

Thus we see the House has explicitly declared that it had the 
right and that it had the power, and that under certain conditions 
which then existed it would exercise that right and that power, 
to refuse to administer the oath. 

All through these discussions, which I shall not take time to 
read from, the statement of law is made, almost without being 
seriously controverted, as laid down in the text of Judge Mc¬ 
Crary’s book. Mr. Haskell, who was objecting, for another rea¬ 
son, in the Forty-seventh Congress, in the last Cannon case, to 
the refusal to permit a man to be sworn, quoted the law against 
himself in this way: That when there is a prima facie case, but 
two sets of questions can be considered—first, the face of the cer¬ 
tificate and the facts revealed in the certificate, and second, those 
questions going to show the qualifications of the man certified to, 
as to whether he can take the oath of office or not, and when 
those two branches of the subject have been exhausted the prima 
facie case ends. 

There was an able Representative stating all tlie case he could 
state for himself while on the other side of the practical proposi¬ 
tion that confronts us here. 

Mr. Speaker, w0 are told that this will make an unhappy prece¬ 
dent. Precedent! Why, what we do here we do before the open 
and gazing eyes of all the world, and we are at once dragged to 
the bar of history to answer for our deeds. We are no cloistered 
court. We are no statute-bound tribunal. We are the servants 
of the people, empowered, thank God, under the Constitution to 
do the right as we see the right. That is the law that binds us. 
The public eye is on us; the public conscience quickens us. In 
that presence and before such a judge we can do no wrong if we 
obey it. [Applause on the Republican side.] 

Later the same day. 

Mr. TAYLER of Ohio. Mr. Speaker, if I understood the argu¬ 
ment of the member-elect from Utah, he exhibited a large inca¬ 
pacity to comprehend the nature of my position and the nature of 
his position here, and also the spirit of the American people. I 
am not here asserting that the member-elect from Utah is guilty 
of any crime; but I indict him upon my responsibility as a mem¬ 
ber of this House upon the basis of information placed in my 
hands; I charge him in that sense with this offense, and it is not' 
for the House at this moment to inquire whether those charges 
4009 


21 


be true or false, but only are they made with the solemnity that 
should lie at the bottom of a charge made under these circum¬ 
stances at this hour and in this House. 

Our friends upon the other side of the House—and I may justly 
use that term now, “ the other side of the House”—are here to-day 
worshiping as they have ever worshiped under other forms and 
for other purposes the fetich of a certificate. All sins are covered 
for them by the certificate of a sovereign State, and no right exists 
in Congress to make him pause—he comes with a certificate. If 
the King of the Cannibal Islands, panoplied with his club and with 
his feathers, marched down the aisle with a certificate of the gov¬ 
ernor of Tennessee, we must stand here appalled by the spectacle, 
and say, “ Mr. Speaker, swear him in.” [Laughter and applause 
on the Republican side.] 

Mr. FOX. Will the gentleman yield to me for a question? 

The SPEAKER. The gentleman has already declined to yield, 
and so stated to the gentleman from Tennessee. 

Mr. TAYLER of Ohio. I have no time to yield now. 

Mr. FOX. I want to ask the gentleman a question. 

The SPEAKER. The gentleman has stated that he will not be 
interrupted, and so said to the gentleman from Tennessee. 

Mr. FOX. I just wanted to ask the gentleman a question. 

The SPEAKER. Tlie gentleman is not in order. 

Mr. TAYLER of Ohio. If a boy 10 years old walked down the 
aisle presenting a certificate as a member-elect from a district in 
the State of Arkansas, my friend from Arkansas who has just 
spoken would say, “The absurdity of this certificate is manifest, 
but we must swear him in.” If Li Hung Chang should march 
down this aisle with a certificate, that certi&ate must be respected. 
There is no want of power, there is no absence of propriety in the 
House ever stopping any man with any certificate for any purpose 
if it so wills; and always is it its duty, and almost always has it 
held it to be its duty and its right to pause, to stop at the threshold 
one whose ineligibility is charged. 

Now, my friend from Tennessee told us about the Cannon case. 
I am grateful for the reference. He quoted from the argument of 
Mr. Potter and of Mr. Hoar and of Mr. Maynard. I want to say 
just this about that discussion: That was a discussion which came 
on and was conducted not to exceed ten or fifteen minutes, and 
for one column of the Congressional Record it contains more 
inaccurate accounts of what had occurred at other times than any 
similar statement and page in the Congressional Record. 

Let me give you a brief account of that episode. 

The first session of the Forty-third Congress was on the 1st of 
December, 1873. The Delegates were not called upon to be sworn 
in until after the complete organization of the House. 

Mr. Maynard suggested that the Delegates be sworn in. 

Mr. Merriam said: 

Before the Delegate from Utah is sworn in I have a resolution which I 
desire to offer. 

The Speaker then directed the Delegate from Utah to stand 
aside until those who were not objected to should be sworn in. 
When the other Delegates were sworn in, Mr. Merriam offered the 
following preamble and resolution, on which he demanded the 
previous question: 

Whereas it is alleged that George Q. Cannon, of Utah, has taken oaths in¬ 
consistent with the citizenship of the United States and with his obligations 
as Delegate in this House, and has been, and continues to be, guilty of prac¬ 
tices in violation and defiance of the laws of the United States: Therefore, 

Resolved^ That the credentials of said Cannon and his right to a seat in this 

40:39 


22 


House as a Delegate from Utah be referred to the Committee on Elections, 
and that said Cannon be not admitted to a seat in this House previous to a 
report from said committee. 

It will be noted that at this time there was no law declaring 
ineligible a person guilty of polygamous practices. 

A short discussion followed, participated in by Mr. Butler, of 
Massachusetts, Mr. G. F. Hoae, Mr. Clarkson N. Potter, and Mr. 
Maynard. 

Mr. Cox took the position that Mr. Cannon had the prima facie 
right to his seat. 

Mr. Butler said: 

I do not believe that when a man comes here with proper credentials from 
the proper authority it has ever been the custom of the House, or ever ought 
to be, that he shall not have prima facie right to his seat, because the mo¬ 
ment we break away from that rule, then in high party times the House could 
never be organized. 

If Mr. Butler meant by this the situation where the legal or 
constitutional qualifications of the claimant were not questioned, 
he was probably right. But if he meant by that that in every 
case the credentials exhibited not only his election, but his quali¬ 
fications, and that he was entitled to his seat, then he had not 
only forgotten very recent precedents in the House, but also his 
own position, especially the position he took in the Connor case, 
to which I have just referred. 

Mr. Hoar said: 

This precise case came up in the last House in the case of Mr. Clark, of 
Texas. His credentials were referred to the Committee on Elections, and 
that committee reported that the only question for the House to consider 
was whether Mr. Clark’s credentials were regular in form and whether the 
officer certifying them was entitled by the law of the State and usages of 
the House to give him those credentials. 

Mr. Hoar’s parallel is a very unhappy one. Clark’s certificate 
was in perfect form; there was no question of ineligibility or per¬ 
sonal disqualification. It is a question solely of election and re¬ 
turns. 

Mr. Potter said: 

There is no question about certificates presented in this case. The resolu¬ 
tion of my colleague goes, by way of objection to this gentleman being sworn 
in, upon the ground that he is guilty of certain practices contrary to the laws 
of the United States. 

Now, the difficulty with my colleague’s objection is that the statute has 
prescribed certain qualifications for the office of Delegate from that Terri¬ 
tory, but among those qualifications is not innocency in respect to practices 
to which my friend alludes. 

Wehad that precise question in the Forty-first Congress, when a gentleman 
from Virginia was charged with disloyalty and other offen.ses, and it was 
agreed, almost without a dissenting voice upon this side of the House, that this 
House had no voice to consider or determine, as a prerequisite to admission, 
whether or not he had been guilty of those or any other offenses, provided he 
came here with the constitutional requirements in reference to his qualifica¬ 
tions. 

So we find Mr. Potter admitting that want of constitutional 
qualifications will bar a man at the threshold, and surely a valid 
legal disqualification will do the same. 

But Mr. Potter’s reference to the Virginia case was no happier 
than Mr. Hoar’s in the Texas case. 

In the Virginia case referred to the House refused to permit the 
swearing in of members objected toon the ground of disloyalty 
until the charge had been examined either by the House or the 
Committee on Elections. 

Mr. Maynard said: 

There is another question in connection with this case to which I desire to 
call attention; it is that this resolution is introduced with a preamble which 
asserts certain propositions to be facts. We have no evidence to that effect; 

4009 


23 


we have no documents presented. The mover of the resolution has made 
no statement upon his own authority or otherwise, and it seems to me that 
it would be very rash for us to assume the truth of those statements, and to 
act upon them so far as to prevent the swearing in of this Delegate. It is 
from that aspect of the case that I am prevented from making the motion 
that I first thought of making—to refer the resolution to the Committee on 
Elections. 

I think it very unsafe to adopt a resolution or any other proceeding in this 
House reflecting upon a member of the House unless we first have some 
ground laid, either by documentary evidence introduced -or by statements 
made by the gentleman who introduced the proposition upon his own author¬ 
ity and responsibility. 

The House discussed the question and tried it out. So, prop¬ 
erly, Mr. Merriam’s resolution was laid on the table. 

At the time when the objection was made to Mr. Cannon, of 
Utah, the Edmunds law was in the womb of the future. There 
was no statutory disqualification, and Mr. Cannon came only as 
a Delegate. But later on, Mr. Speaker, George Q. Cannon, of 
Utah, came to the bar of this House. He did not chance to hold 
a certificate, although he ought to have had a certificate; but if 
he had come to the bar of the House, he would have been stopped 
there and, as I gather from the sentiments of that Congress, he 
would have been held there and not permitted to take the oath, 
for when the case came up for consideration in his contest against 
Campbell, in the following May, only six weeks after the Ed¬ 
munds law was passed, George Q. Cannon, with an incontestable 
right to a seat as a Delegate on the floor of this House, save that 
he was a polygamist, was denied a seat because of his polygamy. 
[Applause on the Republican side.] 

There was no ground, claim, or pretense of right to keep him 
out save that he was a polygamist. Mr. Speaker, we talk about 
letting this man in and then, perchance, putting him out. I take 
the liberty to repeat what was repeated before on the floor of this 
House on a similar occasion, the lines put into the mouth of Colonel 
Titus, more than two hundred years ago, when Charles II was 
battering at the doors of Parliament and the liberties of the people, 
demanding entrance: 

But Titus said, with his uncommon sense, 

When the Exclusion bill was in suspense, 

I hear a lion in the lobby roar; 

Say, Mr. Speaker, shall we shut the door 
^ And keep him there, or shall we let him in 
To try if we can put him out again? 

[Applause.] 

***•»»♦* 

Mr. TAYLER of Ohio. Mr. Speaker, I demand the previous 
question on the resolution and the substitute. 

The previous question was ordered 

The SPEAKER. The question is on the adoption of the amend¬ 
ment offered by the gentleman from Tennessee as a substitute. 

The question was taken; and on a division (demanded by Mr. 
Richardson) there were—ayes 59, noes 247. 

So the amendment was rejected. 

The SPEAKER. The question recurs on the adoption of the 
original resolution offered by the gentleman from Ohio [Mr. Tay- 
lerI. 

Mr. DALZELL, Mr. GROSVENOR, and several others. The 
yeas and nays, Mr. Speaker. 

The yeas and nays were ordered. 

The question was taken; and there were—yeas 304, nays 31, not 
voting 19. 

4009 


24 

On motion of Mr. TAYLER of Ohio, a motion to reconsider tho 
last vote was laid on the table. 

The SPEAKER announced the appointment of the following 
committee in accordance with the vote just taken: 

Special committee: Mr. Tayler, Ohio; Mr. Landis, Indiana; 
Mr. Morris, Minnesota; Mr. Freer, West Virginia; Mr. Little¬ 
field, Maine; Mr. McPherson, Iowa; Mr. De Armond, Missouri; 
Mr. Lanham, Texas; Mr. Miers, Indiana. 


FINDING OF FACTS BY THE COMMITTEE. 

We find that Brigham H. Roberts was elected as a Repre¬ 
sentative to the Fifty-sixth Congress from the State of Utah 
and was at the date of his election above the age of 25 years; 
that he had been for more than seven years a naturalized citi¬ 
zen of the United States and was an inhabitant of the State of 
Utah. 

We further find that about 1878 he married Louisa Smith, 
his first and lawful wife, with whom he has ever since lived 
as such, and who since their marriage has borne him six 
children. 

That about 1885 he married as his plural wife Celia Dibble, 
with whom he has ever since lived as such, and who since such 
marriage has borne him six children, of whom the last were 
twins, born August 11, 1897. 

That some years after his said marriage to Ceclia Dibble he 
contracted another plural marriage with Margaret C. Shipp, 
with whom he has ever since lived in the habit and repute of 
marriage. Your committee is unable to fix the exact date of 
this marriage. It does not appear that he held her out as his 
wife before January, 1897, or that she before that date held 
him out as her husband, or that before that date they were 
reputed to be husband and wife. 

That these facts were generally known in Utah, publicly 
charged against him during his campaign for election, and 
were not denied by him. 

That the testimony bearing on these facts was taken in the 
presence of Mr. Roberts, and that he fully cross-examined the 
witnesses, but declined to place himself upon the witness stand. 

4009 



January 23, 1900. 

REPRESENTATIVE-ELECT FROM UTAH. 

Mr. TAYLER of Ohio. Mr. Speaker, I call up the resolution 
from the committee on the case of Brigham H. Roberts. 

Mr. SPEAKER. The Clerk will report the resolution offered 
by the gentleman from Ohio, chairman of the Special Committee 
on the Roberts Case. 

Mr. TAYLER of Ohio. I desire to say, Mr. Speaker, that the 
minority and the majority of the committee have agreed that the 
vote be taken on the substitute and on the resolution on Thursday 
next at half past 4 o’clock, and that in the meantime the discus¬ 
sion continue, to be under the control of myself and the gentle¬ 
man who represents the minority. 

Mr. BAILEY of Texas. Mr. Speaker, it is impossible in this 
part of the House to understand what the gentleman from Ohio 
is saying. 

The SPEAKER. The question will be restated. The House 
will be in order, and gentlemen will please resume their seats. 
Will the gentleman from Ohio [Mr. Tayler] restate his proposi¬ 
tion? 

Mr. TAYLER of Ohio. The arrangement between the minority 
and the majority of the committee is that a vote be taken on 
Thursday at half past 4 o’clock on the substitute offered by the 
minority of the committee, and if that be lost, upon the resolution 
offered by the majority; that the debate continue from now until 
that hour, and that the previous question be considered as ordered 
upon the resolution and the substitute. I ask unanimous consent 
for the carrying out of that arrangement. 

The SPEAKER. The gentleman from Ohio [Mr. Tayler] 
states that an agreement has been reached between the majority 
and the minority of the committee in the Roberts case, whereby 
it is proposed to have general debate until 4.30 on Thursday next, 
when a vote will be taken, first upon the substitute, and if lost, 
then upon the original resolution, and that the previous question 
be considered as ordered upon both the original resolution and the 
substitute. Is there objection to this proposition? 

Mr. LACEY. I object, unless opportunity be given to offer the 
following amendment- 

Mr. TAYLER of Ohio. Mr. Speaker, objection is made. I 
think we will proceed, and I will move the previous question at 
the proper time. 

Mr. LACEY. I think perhaps the gentleman will not object to 
this proposition- 

Mr. TAYLER of Ohio. Mr. Speaker, I do not consent to it. 

The SPEAKER. The gentleman from Ohio objects, and ob¬ 
jection is made to his request. The gentleman from Ohio is rec¬ 
ognized. 

Mr. BAILEY of Texas. Does the gentleman from Ohio object 
before he knows what the proposition of the gentleman from 
Iowa is? 

Mr. TAYLER of Ohio. If there is a desire on the part of the 
House that any amendments should be offered and we have oppor¬ 
tunity to discern what they are and what they mean- 

Mr. BAILEY of Texas. I ask that the proposed amendment be 
read. 

4009 


26 


Mr. LACEY. Let it be read for information. 

Mr. TAYLER of Ohio. But the gentleman from Iowa has ob¬ 
jected. 

Mr. LACEY. I have not. My objection was conditional, andr 
my request is that a third proposition not involved in the two 
propositions hero may be pending. Perhaps when my friend 
hears it he will consent to it. 

Mr. TAYLER of Ohio. I may consent to it, but I will not con¬ 
sent to it at this moment. It has not been proposed to the com¬ 
mittee. No member of the committee, as far as I know, knows 
what it contains, and we are certainly not giving consent to a 
proposition about which we are not informed. 

Mr. LACEY. Why not let the House know what it contains? 

Mr. TAYLER of Ohio. There is a way in which we might 
have been informed, Mr. Speaker. 

Mr. LI VINGSTON. I suggest to the gentleman from Ohio that 
the proposition be read for information. 

The SPEAKER. The matter in order now is the reading of the 
resolution proposed by the majority of the committee. The Clerk 
will read. 

The Clerk read as follows: 

Resolved, That under the facts and circumstances of this case, Brigham H, 
Roberts, Representative-elect from the State of Utah, ought not to have or 
hold a seat in the House of Representatives, and that the seat to which he 
was elected is hereby declared vacant. 

Mr. TAYLER of Ohio. I ask for the reading of the resolution 
offered by the minority of the committee. 

The Clerk read as follows: 

Resolved, That Brigham H. Roberts, having been duly elected a Represent¬ 
ative in the Fifty-sixth Congress from the State of Utah, with the qualifica¬ 
tions requisite for admission to the House as such, is entitled, as .a constitu¬ 
tional right, to take the oath of ofiice prescribed for members-elect, his 
status as a polygamist, unlawfully cohabiting with plural wives, affording 
constitutiovxal ground for expulsion, but not for exclusion from the House. 

And if th» House shall hold with us and swear in Mr. Roberts as a member, 
we shall, as soon as recognition can be had, offer a resolution to expel blm 
as a polygariist. unlawfully cohabiting with plural wives. 

Mr. L ACRY. I offer the amendment which I send to the Clerk’s 
desk. 

Mr. TAYLER of Ohio. I have the floor. 

The SPEAKER. The gentleman from Ohio has the floor. 

Mr. LACEY. The gentleman yielded the floor for the amend¬ 
ment which has just been read. 

The speaker. Does the gentleman from Ohio yield for an¬ 
other amendment? 

Mr. TAYLER of Ohio. I do not. 

The SPEAKER. The gentleman from Ohio objects, and is rec¬ 
ognized. 

Mr. TAYLER of Ohio. Mr. Speaker, I may be pardoned for a 
word personal to myself in this relation. Some weeks ago the 
duty was laid upon me to make an investigation of the law relat¬ 
ing to the rights of the member-elect from Utah, and I undertook 
that work. I did so without prejudice in any respect, and 1 was 
not aware, nor am I now, that 1 was then moved by any so-called 
emotional impul.«e respecting what the member-elect from Utah 
is supposed to represent. 

I started in that investigation with the opinion that the proper 
course for the House would be to admit the member-elect from 
Utah to his seat, and then, if his life or his conduct had been such 
as to justify it, that we should expel him. But when I progressed 
4009 


27 


with my investigation, as largely judicial as any investigation 
ever was, I came to the conclusion that under the facts of the 
case as then presented to me this House would make itself ridicu¬ 
lous before the eyes of the world if it adopted that method. 

The committee have found that Brigham H. Roberts is, and has 
been for many years, a polygamist, in defiant practice of the 
habit and condition, with full knowledge of the laws of the land, 
and that he is in that condition, as we believe, to-day; and as re¬ 
cently as last month declared that he would not give up the rela¬ 
tions which he said he had taken before the law spoke, although 
he knew that the law had spoken; he claims for himself that it did 
not speak for him. 

Mr. Chairman, the members of this committee entertain varying 
views, not because of any larger fund of knowledge or any differ¬ 
ent degree of mental force they possess, but rather on account of 
what I may call their intellectual temperament. Every member 
has reached an unbiased and deliberate conclusion, unaffected by 
any party feeling or any public clamor. Every man goes into a 
scientific and philosophical investigation with some certain intel¬ 
lectual bent, though unaffected by any kind of prejudice respect¬ 
ing the subject of inquiry. It is often necessary that we under¬ 
stand what that bent is. 

The microscope is useful and often necessary, but the micro¬ 
scope must be laid aside when the process of synthesis and gen¬ 
eralization begins. We must not imagine that we survey the 
whole area of related facts, when we shut ourselves up in the val¬ 
ley, or lose ourselves in the forest. I will be pardoned, therefore, 
if I present a few general observations from as high a point of 
view as I can reach, designed to clear the atmosphere and widen 
the scope of vision. We may then the more justly and correctly 
appraise the more specific observations that are to follow. 

Chief Justice Waite, in the Reynolds case, in 1878, speaking of 
the claim that polygamy was justified as a religious practice, said; 

To permit this would be, in effect, to permit every citizen to become a law 
unto himself. Government can exist only in name under such circumstances. 

And Mr. Justice Matthews, in the Ramsey case, in 1884, declares 
in substance that— 

A free, self-governing commonwealth is founded on the idea of the family 
as consisting in and springing from the union for life of one man and one 
woman in the holy estate of matrimony, and that all political influences are 
to be withdrawn from those who are practically hostile to its establishment. 

If we are to attach any importance to these fundamental obser¬ 
vations, we must declare, no matter what moral question may be 
involved, that this case presents, in bold relief, a question of gov¬ 
ernmental life the basis of which is law. 

This is a representative Government. It springs from the peo¬ 
ple, from the people who make the law, and their representatives 
are such because they are believers in the law and subject to the 
law, and as they can not stand for defiance of any law, so much 
the more must they stand as the respecters of and obedient to such 
laws as have proceeded from the people, at the people's initiative. 
Now and then we have a law which springs from the united voice 
of a united people as an expression of the civilizing force in which 
practically all of them believe and which is necessary to the ex¬ 
istence of that civilizing force. 

Of the more than 75,000,000 American citizens all but the merest 
handful believe, and believe with a mighty fervor, in the kind of 
4009 


28 


commonwealth which Justice Matthews declares is founded on the 
marriage relation existing for life between one man and one woman. 
That idea has been for many years crystallized in solemn and de¬ 
liberate law, whose principle and form have been approved by the 
highest judicial authority. 

These propositions are fundamental and self-evident. They lie 
at the root of things. They are the bed rock upon which constitu¬ 
tions rest. They precede constitutions. Constitutions assume 
their preexistence and perpetual existence. They are institutional. 
If the Federal Constitution had explicitly declared that all per¬ 
sons should be eligible for Representative in Congress who denied 
that the Constitution was the supreme law of the land, that Con¬ 
stitution and the government which it sought to create could not 
have endured a single day. It follows that if such specific decla¬ 
ration could not have been made, it can not be implied. 

Neither the presence nor the absence of certain words in the in¬ 
strument can imply a certain meaning if it is impossible that such 
meaning could have been expressed. If the claimant to this seat 
is eligible, he is eligible because the Constitution so makes him, 
either by its express language or because it is necessarily implied. 
The words “ necessary implication ” mean—and I ask the careful 
attention of the House to this—the words “necessary implication” 
mean that if the framers of the Constitution had had in mind the 
particular exigency to which the words applied, they would, if the 
proposition vras approved, have written into the Constitution the 
words that are necessarily implied. 

For example, if we say that under the Constitution, as it now 
stands, there can be no property qualification for Representative in 
Congress, then we read into the clause respecting qualifications 
the words “and no person shall be rendered ineligible by any 
property qualification.” 

If the constitutional provision by implication, w^hich for the 
sake of this discussion 1 admit, means that no educational quali¬ 
fication shall be required, then when wo get do^vn to the last 
analysis and demonstrate the correctness of that proposition, we 
read into the Constitution the statement that no educational 
qualification shall be required of any candidate for Representative 
in Congress. 

The Constitution says: 

This Constitution and the laws of the United States which shall he made 
in pursuance thereof shall be the supreme law of the land. 

If the member-elect from Utah is eligible to be a Representative 
in Congress, then for the purpose of his case we must read into 
the Constitution other words which are now said to be implied, 
so that it will read: “No person shall be a Representative in Con¬ 
gress unless he shall have attained to the age of 25 years and been 
seven years a citizen of the United States and who shall not when 
elected be an inhabitant of that State in which he shall be chosen, 
provided that no person shall be ineligible to a seat as such Repre¬ 
sentative. although in form and substance, in word and act. in 
life and practice, he defies the Constitution and the laws and denies 
their validity and supremacy.” 

It matters not whether this proviso be attached to the clause 
referred to or to some other, it must be written into the Constitu¬ 
tion somewhere if the claimant is eligible. 

Thus stands the case. If the minority be right, the framers of 
the American Constitution, if they had foreseen the Roberts inci- 
4009 





29 


« 


dent with its defiance of the Constitution and the law, and its de¬ 
nial of their validity and supremacy as to him, would have said, 
‘‘Brigham H. Roberts is eligible and must take his seat.” There 
is no other rule by which to determine what the makers of the 
Constitution mean than to ask what would have been their dispo¬ 
sition of such a case; and if what they would have done is abso¬ 
lutely free from doubt, we can understand what it is that is implied, 
though not expressed in words. 

The majority of the committee are fixed in their conviction that 
in view of the status of Brigham H. Roberts, not because of any 
moral question that may be involved, but because of the ques¬ 
tion of governmental right involved, in view of his defiant viola¬ 
tion of law, in view of his denial of the validity and supremacy of 
the law of the land, has no right to take his seat in this body, and 
should be excluded therefrom. 

The minority, on the other hand, attaching more value to the husk 
than to the ear, seeming to conceive that the shadow is to be more 
taken care of than the substance, declare that we must let him 
go through the hollow form, the sacred form of taking an oath, 
and then expel him; to rob him of that which is substantial, but 
that we must not deprive him of that which is a mere shadow. 
They say, “ You may come up and enter our front door, in order 
that we may kick you out of the back door, but we cheerfully de¬ 
clare, with the Constitution before us, that we can not kick you 
down the front steps.” 

We believe that that is absolutely untenable as a proposition of 
law and absolutely unsupported by precedents. 

I want to make these preliminary statements respecting that. 
First, upon the doctrine of exclusion. 

The language of the eonstitutional provision, the history of its 
f raming in the Constitutional Convention, and the eontext elearly 
shoic, ivhatever else may have been true, that it did not intend to 
prevent this disqualifieation for erime or for defianee of the Con¬ 
stitution and the laws. The 'overwhelming authority of text-book 
writers on the Constitution and of judieial declarations on the 
subject harmonizes with this view. The House of Representatives, 
in all the years of its existence, has never denied that it had the 
power and the right to exclude. 

In many instances it has excluded for disloyalty and for crime. 
In 1862 Congress passed the test-oath act, which in effect disquali¬ 
fied hundreds of thousands of American citizens, and thousands of 
Representatives in this body went to the bar of the House under a 
disqualification that was not removed until they took the test 
oath, an oath substantial in its character and superadded to the 
constitutional oath. And this very House in 1869 adopted a gen¬ 
eral rule of order providing that no person should be sworn in as a 
member against whom the objection was made that he was not 
entitled to take the test oath. 

On the proposition of expulsion I present these general observa¬ 
tions: That the ablest lawyers from the beginning of the Govern¬ 
ment down to this case, but of course not including it, have insisted 
that neither the House of Representatives nor the Senate has the 
right to expel a man unless the thing for which he was expelled 
occurred in connection with his election or while he teas a member, 
and was inconsistent with his tmist or duty as a member. 

I lay that proposition down as absolutely sound and as not con¬ 
tradicted anywhere; and both Houses of Congress have in many 
instances refused to expel members where the proof of guilt was 
4009 


30 




absolutely clear, because the acts complained of were unrelated 
to the members as such, because the acts complained of were not 
inconsistent with the trust and duty of the member as such. 

Neither House has ever expelled a member for any other cause. 
So I say this here and now: To exclude is to be in harmony with 
principle and precedent; to expel is to do violence to principle and 
precedent. There is no precedent in the House against exclusion. 
There is no precedent in the American Congress for expulsion 
under such circumstances as exist here. 

Three reasons are asserted why this man should not be permit¬ 
ted to enter the House of Representatives: 

First, because of his violation of the Edmunds law and the dis¬ 
qualification created thereby. 

Second, independent of any statutory ineligibility, independent 
of any joint action of the two Houses in the passage of a law, but 
because of the inherent power of the House, by that inherent 
power which in all cases of exclusion has been invoked—and the 
Ilouse has never excluded for any other reason except for that 
which it itself declared, independent of any statute law—that this 
man was a defiant violator of law; his declarations, words, and 
acts that he was above the law, that the law did not speak to him, 
in the very necessity of things, make him ineligible: and 

Third, because the State of Utah was admitted into the Union 
under the express understanding that polygamous practices were 
at an end and would not be renewed. And now it sends as 
its Representative the most conspicuous example, the most con¬ 
spicuous practitioner of the very thing the abandonment of which 
was the condition precedent to its admission into the Union. 

This question, then, meets us at the threshold: Does the con¬ 
stitutional provision naming qualifications for members of Con¬ 
gress preclude the imposition of any other kind of disqualification? 

Must it be said that the constitutional provision, phrased as it 
is, really means that every person who is 25 years of age, and who 
has been for seven years a citizen of the United States, and was, 
when elected, an inhabitant of that State in which he was chosen 
is eligible to be a member of the House of Representatives and 
must be admitted thereto, even though he be insane, or disloyal, 
or a leper, or a criminal? 

Is it conceivable that the Constitution meant that crime could 
not disqualify? The whole spirit of government revolts against 
such conception. 

I want to distinguish between that qualification which is of 
the character of age, citizenship, and inhabitancy, such as prop¬ 
erty and education, and those disqualifications which arise out of 
the criminal or wrongful practices of an individual who willingly 
puts himself within the prohibited class. 

I say this: Whatever general statements may have been madCy 
no commentator on the Constitution, no court, and neither House 
of Congress has ever questioned the propriety of the distinction 
between disqualification arising fr'om improper life or criminal 
practices and qualifications within the usual meaning of that 
word. 

In our opinion the law is correctly stated, and as comprehen¬ 
sively as this case needs to state it, in Burgess in his work on 
Political Science and Constitutional Law, where he says: 

I think it certain that either Ilouse might reject an insane person or might 
exclude a grossly immoral person. 

Now let US look for a moment at where the claimant himself 
4009 


31 


stands. What is he? What picture does he present as he stands 
at the bar of the American House of Representatives? 

In 1862 Congress first passed a law making the act of polyga¬ 
mous marriages unlawful; but it did not make the practice of 
polygamous living unlawful. The Mormons claimed that law 
was unconstitutional, because it was an infraction of their right 
of religious worship. The Supreme Court, in the Reynolds case, 
in 1878, declared that law valid in all respects, and Chief Justice 
Waite in a luminous opinion voiced the sense of modern civiliza¬ 
tion in his characterization of polygamy. I quote as follows: 

Polygamy has always been odious among the northern and western na¬ 
tions of Europe, and until the establishment of the Mormon Church was 
almost exclusively a feature of the life of Asiatic and of African people. 

By the statute of James I the offense was made punishable by death. 

It is a significant fact that on the 8th of December, 1788, after the passage 
of the act establishing religious freedom, and after the convention of Vir¬ 
ginia had recommended as an amendment to the Constitution of the United 
States the declaration of the bill of rights that ‘*all men have an equal, nat¬ 
ural, and unalienable right to the free exercise of religion, according to the 
dictates of conscience,” the legislature of that State substantially enacted 
the statute of James I, death penalty included, because, as recited in the 
preamble, “it hath been doubted whether bigamy and polygamy be punish¬ 
able by the laws of this Commonwealth.” From that day to this we think it 
may safely be said there never has been a time in any State of the Union 
where polygamy has not been an offense against society, cognizable by the 
civil courts and punishable with more or less severity. 

And, continuing the quotation: 

Marriage, while from its very nature a sacred obligation, is nevertheless, 
in most civilized nations, a civil contract, and usually regulated by law. 
Upon it society may be said to be built, and out of its fruits spring social 
relations and social obligations and duties, with which government fs neces¬ 
sarily required to deal. In fact, according as monogamous or polygamous 
marriages are allowed, do we find the principles on which the government 
of the people to a greater or less extent rests. Professor Lieber says polyg¬ 
amy leads to the patriarchal principle, and which, when applied to large 
communities, fetters the people in stationary despotism, while that princiine 
can not long exist in connection with monogamy. Chancellor Kent observes 
that this remark is equally striking and profound. 

Can a man excuse his practices to the contrary because of his religious 
belief? To permit this would be to make the professed doctrines of religious 
belief superior to the law of the land, and in effect to permit every citizen to 
become a law unto himself. Government could exist only in name under 
such circumstances. 

So also in Murphy vs. Ramsey (114 U. S., 45). Construing the 
Edmunds Act, Justice Matthews says: 

Certainly no legislation can be supposed more wholesome and necessary 
in the founding of a free, self-governing commonwealth, fit to take rank as 
one of the coordinate States of the Union, than that which seeks to establish 
it on the basis of the idea of the family, as consisting in and springing from 
the union for life of one man and one woman in the holy estate of matrimony; 
the sure foundation of all that is stable and noble in our civilization; the best 
guaranty of that reverent morality which is the source of all beneficent 
progress in social and political improvement. And to this end no means 
are more directly and immediately suitable than those provided by this 
act, which endeavors to withdraw all political influence from those who are 
practically hostile to its attainment. 

How cogent and prophetic are these words. How applicable to 
this situation, that all political influence ought to be withdrawn 
from those practically hostile to the establishment of a “common¬ 
wealth on the basis of the idea of the family as consisting in and 
springing from the union for life of one man and one woman in 
the holy estate of matrimony.” 

There was no machinery for enforcing the act of 1862 until 1882, 
when Congress passed what is known as the Edmunds law. This 
act defined and punished bigamy and polygamy in the same 
terms as the act of 1862, but also punished unlawful cohabitation, 
and declared ineligible for office any person who maintained the 
1009 


32 

status of a polygamist or who cohabited wdth more than one 
woman. 

Section 8 of that act is as follows: 

That no polygamist, bigamist, or any person cohabiting v/ith more than 
one woman, and no woman cohabiting with any of the persons described as 
aforesaid in this section, in any Territory or other place over which the 
United States have exclusive jurisdiction, shall be entitled to vote at any 
election held in any such Territory or other place, or be eligible for election 
or appointment to, or be entitled to hold, any office or place of public trust, 
honor, or emolument in, under, or for such Territory or place, or under the 
United States. 

This law had not only the force of a public law, but it was the 
outcome of years of agitation and reflection. It crystallized the 
sober sense of the American people; it represented the settled 
views of our wisest and most conservative statesmen, and later 
received the stamp of approval from the Supreme Court of the 
United States in many well-considered cases, and was made the 
subject of felicitous proclamation by the President. 

Prior to 1882 the claimant to this seat married his first wife. 
About 1885, after the passage of the Edmunds law, after the 
Supreme Court had declared that law valid in all of its parts, while 
the Territory of Utah was fairly ringing with the blows of that 
act, Brigham H. Roberts married a second or plural wife, one 
Celia Dibble byname. With her he has lived ever since. She 
has borne him six children, the last of whom were twins, born in 
1897. This woman he married with full knowledge of the law, 
openly, publicly, notoriously holding her out as his wife and 
rearing children by her. 

This second wife he married in defiance of the Edmunds law. 
He declared by his act that he recognized no binding rule upon 
him of a law of Congress; he declared by it that he recog¬ 
nized a higher law. The Congress of the United States was to 
him an object of contempt. The Supreme Court of the United 
States might declare the law for others, but not for him. He 
laughed at its futile decrees and spurned its admonitions. The 
Executive which had declared in solemn messages its gratification 
that polygamy seemed gone forever he defied and despised. Of 
what consequence to him were laws of Congress and declarations 
of the highest court and proclamations of Presidents as against 
his sensual interpretation of a sensual doctrine? 

And all the time the Edmunds law declared not only polygamy, 
but cohabitation with more than one woman unlawl ul. Roberts 
not only bigamously married a second wife, but he persisted in 
violating and defiantly trampling under foot every other provision 
of the act. 

But he had not sufficiently shown his contempt, his utter and 
absolute contempt for the American people and for this body. He 
defied it by word and by act. and in order to show how utterly he 
defied and despised the national authority and the American Con¬ 
gress, a little while later he married a third wife. We do not 
know whether he married her before 1897 or not. He held her out 
as his wife in 1897, and not before. And if that be about the time 
when he married her, he married her after Utah became a State 
and after the constitutional prohibition of polygamous marriages. 

The claim is made, not by any sworn testimony, that he married 
hei prior to the manifesto of 1890, which prohibited further plu¬ 
ral marriages in the church. 

If that be true, he managed to marry a third wife within a year 
4009 


33 


after he got out of the penitentiary for marrying a secotid wife. 
This is the gentleman whose rights under the American Constitution 
are so sacred that he must be invited before the Speaker of the 
House and asked to hold his hand up before high Heaven and swear 
to obey the Constitution and laws which in his life and practice he 
declares that he defies and whose supremacy he denies. 

The amnesty proclamations of 1893 and 1894 never embraced 
him. There was never a moment when its provisions were com¬ 
plied with by him. There has never been a moment since he 
married Celia Dibble down to the present moment when he has 
not been a persistent, notorious, defiant, demoralizing, audacious 
violator of every provision of the State and Federal law relating 
to polygamy and its attendant crimes. And this is the man who 
seeks admission to this body. 

It was declared in the Kentucky cases, and in the Thomas case 
in the Senate, and in the test-oath act of 1862, that disloyalty 
created ineligibility; that fidelity to the Constitution was a neces¬ 
sary qualification to membership in this bo*dy. What is loyalty? 
It is faithfulness to the sovereign or the lawful government. A 
mere violator of the law may not necessarily be disloyal. One 
may violate the law and still recognize the sovereign and the law¬ 
fulness of the government. His only concern may be that he shall 
not be found out and punished. But that man is surely disloyal, 
and in the fullest sense disloyal, when by his words, his acts, and 
his persistent practices he declares unequivocally in this wise: 

“You have solemnly enacted certain laws; you have crystal¬ 
lized into statute the will of the sovereign people. I bid defiance 
to your law. I will not recognize it. I here and now before 
your very eyes do the things you say I shall not do. I recognize 
a higher law than your man-made law—no law of yours can re¬ 
lieve me from the obligations which I thus take in defiance of 
your enactments. The only thing I promise not to do is to take 
a fourth wife.” 

The case of a bribe taker, or of a burglar, or of a murderer is 
trivial, is a mere ripple on the surface of things, compared with 
this far-reaching, deep rooted, audacious lawlessness. 

What was the case of Whittemore, who was excluded, as here¬ 
after set out? Ho had not been convicted of any crime, but a 
committee had found that he had sold a cadetship. He did not 
pretend that he was wiser or greater than the people, or that he 
had the right to sell cadetships and was above the law. The acts 
of Roberts are essentially disloyal. They deny the sovereign; they 
repudiate the lawful government. Look at them from w’hatever 
point you will, they are subversive of government. They do not 
merely breed anarchy, they are anarchy. 

Now,whatarethedutyandthe power of the House? The Consti¬ 
tution has a provision which I have heretofore read in the hearing 
of the House, declaring the qualifications for Representatives in 
Congress. I assert that that is not exclusive in so far as it pre¬ 
vents the House from asserting any ground of disqualification 
which goes to the vitality of this body as such, or which in the com¬ 
mon judgment of mankind ought always to exclude from the 
legislative body a person who is thus charged. 

I have not the time to go fully over the reasons that have 
brought conviction to my mind and to the minds of my colleagues 
of the majority, but I shall refer to them to such an extent as I 
think will convince this House. 

4009-3 


34 

Three methods present themselves by which to test the sound¬ 
ness of this view: 

First. On principle, and this involves— 

(1) The nature of the legislative assembly, and the power nec¬ 
essarily arising therefrom. 

(2) The express language of the constitutional provision. 

(3) The reasons for that language. 

(4) Its context and its relation to other parts of the instrument, 

(5) The obvious construction of other portions of the same in¬ 
strument necessarily subject to the same rule of construction. 

Second. The text-books and the judicial authorities. 

Third. Congressional precedents. These are of two classes— 

(1) Action respecting the rights of individual members. 

(2) Acts of Congress and general resolutions of either House. 

As to the first proposition, what is the argument on principle? 

I think it will be undoubted that every legislative body has un¬ 
limited control over its own methods of organization and the 
qualifications or disqualifications of its members, except as spe¬ 
cifically limited by the organic law. I do not think that this 
proposition needs amplifying; it is axiomatic. It is apparent 
that every deliberative and legislative body must have supreme 
control over its own membership except in so far as it may be 
specifically limited by a higher law. There is a distinction to be 
drawn between the legislative power of a legislative body and its 
organizing power, or those things which relate to its membership 
and its control over the methods of performing its allotted work. 
That is to be distinguished from the legislative power to be ex¬ 
pressed in its final results. 

When our Constitution was framed there was practically no 
limit to the right and power, in these respects, of the English Par¬ 
liament, Such power is necessary to the preservation of the body 
itself and to the dignity of its character. In England it was at 
one time admissible to permit the admission into the House of 
Commons of minors, of aliens, and of persons not inhabitants of 
the political subdivision in which they were elected. To this day 
it is well known that an inhabitant of London may be elected by 
a Scotch constituency, and a member has been elected by more 
than one constituency to the same Parliament. 

The framers of the Constitution, familiar with these facts, pro¬ 
posed to prevent their happening in this country. They knew also 
that a similar latitude of choice had been exercised in the original 
colonies and in the States of the Federation, and it was proposed 
to put a stop to it so far as Congress was concerned. A very lumi¬ 
nous argument was made on this subject by John Randolph in the 
House of Representatives in 1807. 

I quote as follows from his remarks: 

If the Constitution had meant (as was contended) to have settled the quali¬ 
fications of members, its words would have naturally run thiis: “Every 
person who has attained the age of 25 years and been seven years a citizen of the 
United States, and who shall, when elected, be an inhabitant of the State 
from which he shall be chosen, shall be eligible to a seat in the House of Rep¬ 
resentatives.” But so far from fixing the qualifications of members of that 
House, the Constitution merely enumerated a few disqualifications within 
which the States were left to act. 

It is said to the States: You have been in the habit of electing young men 
barely of age; you shall send us none but such as are five and twenty. Some 
of you have elected persons just naturalized; you shall not elect any to this 
House who have not been some seven years citizens of the United States. 
Sometimes mere sojourners and transient persons have been clothed with 
legislative authority. You shall elect none whom your laws do not consider 
as inhabitants. 

4009 


35 


In pursuance of the idea in the mind of the framers of the Con¬ 
stitution we have the peculiar words, “No person shall be a Rep¬ 
resentative who shall not have attained,” etc. How happy, indeed, 
are these words if we give them precisely the force and meaning 
for which we contend. How unhappy and how misleading, how 
impossible, in fact, to the masters of the English language who 
wrote them if they were intended to exclude all other possible re¬ 
quirements or dis(iualifications. We might admit such construc¬ 
tion if suitable language was difficult to find or frame; but note 
how easily such a purpose could have been served in fewer words 
and with unmistakable meaning—thus: “Any person,” or “a per¬ 
son,” or “every person may be a Representative who shall have 
attained the age of 25 years,” etc. 

The provision seems to be worded designedly in the negative, so 
as to prevent the suspicion that it was intended to be exclusive, 
and so as to prevent the application of the rule, “ the expression 
of one thing is the exclusion of another.” The immediately pre¬ 
ceding clause is affirmative, and says: “The electors in eachStaffe 
shall have the qualifications,” etc. With some show of propriety 
it can be claimed that this provision is exclusive. It at least does 
not have the negative form to condemn such construction. 

Story says (Constitution, section 448): 

The truth is that in order to ascertain how far an affirmative or negative 
proposition excludes or implies others we must look to the nature of the pro¬ 
vision, the subject-matter, the objects, and the scope of the instrument. 
These, and these only, can properly determine the rule of construction. 
There can be no doubt that an affirmative grant of powers in many cases will 
imply an exclusion of all others. 

It is a notable fact that in the first draft of this constitutional 
provision which provides for qualifications of Representatives in 
Congress the language was affirmative and positive, and that 
when it was finally presented for adoption it appeared in the form 
in which we now find it. 

The slight contemporaneous discussion in the Constitutional 
Convention was upon the provision in the affirmative form. Why 
was it changed to the negative? Surely not for the sake of 
euphony. And certainly not to make it more explicitly exclusive. 

In the report of the committee of detail, submitting the first 
draft of the Constitution, this section read in the affirmative and 
as follows: 

Every member of the House of Representatives shall be of the age of 25 
years at least; shall have been a citizen of the United States for at least three 
years before his election, and shall be at the time of his election a resident of 
the State in which he shall be chosen. 

In the discussion Mr. Dickinson opposed the section altogether, 
expressly because it would be held exclusive, saying he— 

was against any recitals of qualifications in the Constitution. It was impos¬ 
sible to make a complete one, and a partial one would, by implication, tie up 
the hands of the Legislature from supplying omissions. 

Mr. Wilson took the same view, saying: 

Besides, a partial enumeration of cases will disable the Legislature from 
disqualifying odious and dangerous characters. 

The next day after this discussion, and when the clause respect¬ 
ing age, etc., had, in its general sense, been informally approved, 
a proposed section respecting a property qualification was dis¬ 
cussed. Mr. Wilson said (Madison Papers, volumes, page 404) that 
bethought “it would behest, on the whole, to let the section go out; 
this particular power would constructively exclude every other 
power of regulating qualifications.” What did Mr. Wilson mean 
4009 


36 


if the result of the discussion in which he participated on the pre¬ 
ceding day was to “ constructively exclude every other power of 
regulating qualifications? ” 

in view of the objections urged by Dickinson and Wilson and 
their opinions as to the construction that would result and the 
consequences thereof, the conclusion seems reasonable, if not ab¬ 
solutely irresistible, that the change from the affirmative to the 
negative form was intentionally made, and with the very purpose 
of obviating such objections, and hence that in being negatively 
stated it was considered by the Convention that the particular 
qualifications mentioned would not be exclusive and would not 
render impossible the “ disqualifying odious and dangerous char¬ 
acters” and would not prevent “ supplying omissions.” 

This section was finally reported and adopted in the negative 
form in which it now appears. The report of the committee 
seems to have been elaborately discussed. 

Where do we find ourselves in such a case as this? Suppose 
that Brigham H. Roberts, instead of being charged with polygamy, 
was charged with treason, not constructive treason, but actual 
treason, and suppose that a witness appeared before the commit¬ 
tee—a credible witness, whose testimony was undisputed—who 
testified that he had seen Brigham H. Roberts wage war against 
the United States in the Spanish war, giving aid and comfort to 
Spain, not constructively, but actively; and suppose that Roberts 
appeared himself before the committee and said, “All that this 
man says is true; I did wage war against the United States; I did 
give aid and comfort to its enemies in time of war against a for¬ 
eign foe, and I glory in it.” 

Now, in that state of facts the law could not lay its hand upon 
him for the crime of treason, for the Constitution provides that 
no person shall be convicted of treason except upon the testimony 
of two witnesses to the same overt act or by confession in open 
court. So that under the state of facts thus presented he could 
not be convicted of treason. 

Suppose he was here with a certificate of election from a great 
State and demanded admission. 

There, then, we have a spectacle, the spectacle of a man not 
amenable to the punishment for treason, glorying in his treason 
as between this country and a foreign foe, but having the consti¬ 
tutional qualifications for Representative in Congress; and our 
friends of the minority will tell you on the floor of this House, if 
they are asked, tliat Mr. Roberts, thus spitted before the commit¬ 
tee and the House, must be sworn in, in order that the House may 
thereafter expel him. I say that the House would thus find itself 
powerless to protect itself and its own dignity and be made ridicu¬ 
lous before the eyes of the whole world. 

Another illustration. Suppose that on the 1st day of January, 
1899, two months after his election and two months before his 
term as a Representative should commence, he had been convicted 
of the crime of bigamy or of adultery, either one of which is a 
felony under the statutes of Utah, for an offense, we will pre¬ 
sume, committed prior to his election, so that it can not be charged 
that after his election he voluntarily put himself in that position, 
and he was tried, convicted, and sentenced to the penitentiary for 
a term of two years; and it so occurs that his term of imprison¬ 
ment should expire on the 3d day of March, 1901, the day before 
his term as Representative in Congress expires. Suppose he pre¬ 
sented himself on the 3d day of March, 1901, no action having 
4009 


37 


been previously taken in his case, would the House have to admit 
him, or would not the proper proceeding be, while he was still in 
the penitentiary for such an offense, for the House to declare his 
seat vacant; that he ought not to have or retain a seat in the 
American House of Representatives? 

Suppose another case: That in the midst of the organization, 
and before being sworn in, a member-elect should so indecently 
and outrageously condiict himself before the eyes of the House 
and the assembled multitude as to demand and justify expulsion 
if he had so conducted himself after he had been sworn in. What 
would the House do? In the midst of his outrageous misconduct 
must the House, with tender persuasiveness, beg him to honor it 
by being sworn in so that he may be turned out, or would it 
refuse to swear him in and proceed to declare his seat vacant? 
Could the strictest constructionist of the Constitution deny that 
the Constitution was substantially complied with if he was ex¬ 
cluded by a two-thirds vote, even if he did not assent to our view 
in all respects? 

Suppose that the claimant to this seat, while enjoying through 
the courtesy of the House the privilege of the floor, should declare 
his contempt for this body and for the Government; that he re¬ 
spected none of its decrees or the laws of the land as having any 
binding force upon him; that if he became a member of the House 
he should become so merely for the purpose of obstructing its 
business and to tear down the Government. What would the 
House do? Swear him in that it might have the ineffable privilege 
of turning him out? Or would it declare him unfit to have a seat 
in that body and declare his seat vacant? 

As Judge Shaw says in Hiss vs. Bartlett (3 Gray, 473), “It is 
necessary to put extreme cases to test a principle.” 

So much for illustrations upon that question. Look, now, at 
the last paragraph of Article VI of the Constitution: 

The Senators and Representatives before mentioned, and the members of 
the several State legislatures, and all executive and judicial officers, both of 
the United States and of the several States, shall be bound by oath or affirma¬ 
tion to support this Constitution. 

Here is an affirmative declaration that a certain oath shall be 
administered to certain officials. If the theory of exclusion is ap¬ 
plied to the qualification clause as to Representatives, it must be 
applied to this clause, and therefore Congress has no power to de¬ 
mand any other oath or superadd to this oath any other provisions. 

And yet the very oath we took as members of this House has 
additional provisions. Congress passed also the test-oath act in 
1862, making vital additions to the constitutional oath, and, indeed, 
adding a new ground of disqualification for members of Congress. 
This act was passed by a large majority, and compelled members 
of Congress to submit to that oath for many years. Chief Justice 
Marshall, the great expounder of the Constitution, in the case of 
McCulloch vs. Maryland, declared that “He would be charged 
wuth insanity who should contend that the Legislature might not 
superadd to the oath directed by the Constitution such other oath 
or oaths as its wisdom might suggest,” and the whole opinion in 
that case is addressed in principle to the very doctrine that is here 
advocated. 

If Congress could add to the constitutional oath, the same theory 
of construction must permit it to add reasonable qualifications to 
the requirements for members of the legislative body, at least to 
the extent of declaring disqualifications which in their nature 
ought to bar a man from entrance into a great legislative body. 

4009 


38 

The same clause to which I have just referred has this pro¬ 
vision: 

But no religious test shall ever be required as a qualification to any office 
or public trust under the United States. 

If the Constitution had laid down all the qualifications which 
Congress or any other power had the right to impose it was un¬ 
necessary to go on and declare that no religious test should be 
required. That great instrument is inconsistent in its parts and 
contradictory of itself if it be true that it meant that no disquali¬ 
fications should be provided except those named. Nor was it 
necessary, if the proviso means an oath merely, that such excep¬ 
tion should be made, for the preceding words of the paragraph 
set out the required oath. 

The effort to make the negative declaration of minimum quali¬ 
fications exclusive of all others, whatever the necessities of the 
House may be, falls to the ground if we admit that the paragraph 
representing oaths is in the same instrument as that which defines 
the qualifications of members of Congress. 

Let me now proceed with what I have called the text-book and 
judicial authority. 

There is a statement in Story’s work on the Constitution to the 
effect that the clause in the Constitution describing the qualifica¬ 
tions for Representatives in Congress would seem to imply that 
other qualifications could not be added. 

Now, whether or not that be sound, these two observations are 
to be made upon it: 

First. That is dismissed in a very few words. Justice Story 
himself disclaims explicitly in his work that he gives his own 
opinion as to what the Constitution means, but asserts that he 
undertakes merely to give the statements of others. 

Second. This statement of Judge Story does not at all interfere 
with the proposition we have laid down—that the power of the 
House to exclude from its membership a person who is, for in¬ 
stance, disloyal, a criminal, insane, or infected with a contagious 
disease, is not superadding any qualification within the meaning 
of Story, such as a property qualification or an educational quali¬ 
fication. 

We find, however, that Story’s expression, if it means all that 
is claimed for it by the minority, does not accord with the opinion 
of other commentators, with the courts, or with the Congressional 
precedents. We have already quoted, and will not now repeat, 
what is said by Prof. John W. Burgess, professor of history, po¬ 
litical science, and international law, and dean of the university 
of political science in Columbia College, New York. This ambi¬ 
tious work, published in 1898, must be considered an authority 
on the subject of constitutional law. 

In Pomeroy’s Constitutionat Law, third edition, page 138, is the 
following: 

The power given to the Senate and to the House of Representatives each 
to pass upon the validity of the elections of its own members, and upon their 
personal qualifications, seems to be unbounded. But I am very strongly of 
the opinion that the two Houses together, as one House, can not pass any 
statute containing a general rule by which the qualifications of members as 
described in the Constitution are either added to or lessened. 

Such a statute would not seem to be a judgment of each House upon the 
qualifications of its own members, but a judgment upon the qualifications of 
the members of the other branch. The power is sufficiently broad as it 
stands. Indeed, there is absolutely no restraint upon its exercise except the 
responsibility of the Representatives to their constituents. Under it the 
House inquires into the validity of the elections, going behind the certificates 
of the election officers, examining the witnesses, and deciding whether the 
4009 


39 


Bitting member or the contestant received a majority of legal votes. The 
House has also applied the test of personal loyalty to those claiming to be 
duly elected Representatives, deeming this one of the qualifications of which 
it might judge. 

Pomeroy is discussing the power of the House, not stating what 
somebody may have said. 

Throop on Public Offices, section 73, says: 

The general rule is that the legislature has full power to prescribe qualifi¬ 
cations for holding office in addition to those prescribed by the Constitution, 
if any, provided that they are reasonable and not opposed to the constitutional 
provisions or to the spirit of the Constitution. 

Who shall say that the exclusion of Roberts on the ground of 
polygamy is “ opposed to the spirit of the Constitution?” 

Cushing (Law and Practice of Legislative Assemblies, page 195, 
section 477) says: 

To the disqualifications of this kind may be added those which may re¬ 
sult from the commission of some crime which would render the member 
ineligible. 

What have the courts said on similar propositions? We first 
have the case of Barker vs. The People (3 Coweii) [New York]. 
In that case it was held that every person not specifically disqual¬ 
ified by the Constitution was eligible to election or appointment 
to office. In so far as that particular statement goes, it is a denial 
of the broad right to superadd to the constitutional provision as 
to qualifications. But that statement, as applied to this case, loses 
all of its applicability, for two reasons: 

(1) Because it was not the question that it had to decide. 

(2) Because the judge distinctly and positively declares—and 
that was the point involved in the case—that notwithstanding 
that want of power in the Legislature to add to the Constitution 
qualifications it did have the right to disqualify for crime. He 
proceeds to say that it might disqualify for crime upon conviction 
thereof. We apprehend that that is unimportant here, for if the 
House of Representatives has a right to disqualify for crime it 
has the power and the right to determine for itself whether the 
crime was committed, and not to depend upon a judicial convic¬ 
tion. The necessity for a judicial conviction is the more ap¬ 
parent where the person who seeks to take office undertakes to 
assume an executive office to which he has been elected or ap¬ 
pointed, for there may not be any other than the ordinarily con¬ 
stituted court in which to try the question of his guilt of the 
offense that created his ineligibility. 

But it is not the settled doctrine of the law that disqualification 
for crime must be first adjudicated in the courts. The author¬ 
ities are, the most of them, against that proposition, and for the 
sake of convenience we shall refer to them here. 

I quote from Royall vs. Thomas (28 Gratton (Va.), 130). The 
syllabus is as follows: 

Under the constitution and statute of Virginia a party who has aided and 
assisted in a duel fought with deadly weapons may be removed from office 
by proceeding of quo warranto, or if that writ be not in use, by information 
in the nature of a quo warranto, though he has not been convicted of the 
offense in any criminal prosecution against him. 

The court in this case say that the principal authority relied on 
in support of the contrary position to that stated in the syllabus 
is the Kentucky case of Commonwealth vs. Jones. 

It was held in that case that the clause of the Kentucky constitution impos¬ 
ing the disqualification for office of the offense of dueling is not self-execut¬ 
ing, except so far as it prevents those who can not or will not take the 
requisite oath from entering upon office. It was there held that a citizen 
willing to take such oath could not be proceeded against for usurpation a# 

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tucli oflQce until lie had been first indicted, tried, and convicted of the dis- 
<iualifying offense. , . ^ -i 

It was found, however [said the Virgioi^' court in the Qratton casej, on 
examination, that much of the reasoning of the court in the Jones case turns 
upon the peculiar phraseology of the Kentucky constitution, in which it is de¬ 
clared that the offender shall be deprived of the right to hold any office, post, 
or trust under the authority of the State. , „ , , . , 

The court agreed that if, instead of the words “shall be deprived,” the 
phrase “shall not be eligible” had been used, some of the difficulties attend¬ 
ing the argument to show that the provision is self-executing would have 
been obviated. . , , , 

In the case of Cochran vs. Jones, involving the same question, the board 
for the determination of contested elections arrived at a very different con¬ 
clusion upon the same clause of the Kentucky constitution. It will thus be 
seen that even in Kentucky there is such conflict of opinion in respect to the 
true interpretation of the constitutional provisions in question as deprives 
the decision relied on by the defendants of the weight of being considered 
even persuasive authority. 

The provision in the Virginia constitution is as follows; “ No person who, 
while a citizen of this State, has, since the adoption of this constitution, 
fought a duel with aldeadly weapon, sent or accepted a challegne to fight a duel 
with a deadly weapon, shall be allowed to vote or hold any office of honor, 
profit, or trust under this constitution.” 

The court goes on to explicitly hold that previous conviction 
was unnecessary, arguing it with great force. 

The same doctrine is held in Mason vs. The State (58th Ohio 
State), where Mason, who had been elected probate judge of a 
county in Ohio, had expended more money to bring about his elec¬ 
tion than the corrupt practices act allowed, and as this act dis¬ 
qualified such person from holding the position to which he was 
elected, the supreme court held that he could be thus disqualified 
and tept out of office without conviction. 

To the same effect is the case of Commonwealth vs. Walter (83 
Pennsylvania State, 105). 

Proceeding with the enumeration of authorities as to the exclu¬ 
sive effect of the constitutional provision defining or declaring 
qualifications for office, the next case to which I call attention 
is Rogers vs. Buffalo (123 New York). I quote from page 184: 

The case of Barker vs. The People (3 Cowan, 686) has been cited by counsel. 
That case holds the act to suppress dueling, which provided as a punishment 
for sending a challenge that the person so sending should, on conviction, be 
disqualified from holding any public office, was constitutional. 

The chancellor, in the course of his opinion, said he thought it entirely 
clear that the legislature could not establish arbitrary exclusions from office, 
or any general regulation requiring qualifications which the Constitution had 
not required. What he meant by such expression is rendered clear by the 
example he gives. Legislation would be an infringement upon the Constitu¬ 
tion, he thought, which should enact that all physicians, or all persons of a 
particular religious sect, should be ineligible to hold office, or that all persons 
not possessing a certain amount of property should be excluded, or that a 
member of assembly must be a freeholder, or any such regulation. 

But, in our judgment, legislation which creates a board of commissioners 
consisting of two or more persons and which provides that not more than a 
certain proportion of the whole number of commissioners shall be taken from 
one party does not amount to an arbitrary exclusion from office, nor to a 
general regulation requiring qualifications not mentioned in the Constitu¬ 
tion. The “ qualifications ” which were in the mind of the learned chancellor 
were obviously those which were, as he said, arbitrary, such as to exclude 
certain persons from eligibility under any circumstances. Thus a regulation 
excluding all physicians would be arbitrary. But would a regulation which 
created a board of health and provided that not more than one physician from 
any particular school, or none but a physician, should be appointed thereon 
bo arbitrary or unconstitutional as an illegal .exclusion from office? I think 
not. 

The purpose of the statute must be looked at, and the practical results 
flowing from its enforcement. If it be obvious that its purpose is not to arbi¬ 
trarily exclude any citizen of the State, but to provide that there shall be 
more than one party or interest represented, and if its provisions are apt for 
such purposes it would be difficult to say what constitutional provision is 
violated, or wherein its spirit is set at naught. 

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And again, on page 188: 

It is said that the legislature had no right to enact that a person who shall 
be appointed to a public office shall have the qualifications necessary to en¬ 
able him to discharge the duties of such office, nor to provide that the fact 
that he does possess such qualffications shall be ascertained by a fair, open, 
and proper examination. 

Nothing but the bare oath mentioned in the Constitution can be asked of 
any applicant for an appqintive office is the claim of the appellant. We do 
not think that the provision above cited was ever intended to have any such 
broad construction. Looking at it as a matter of common sense, wo are quite 
sure that the framers of our organic law never intended to impose a consti¬ 
tutional barrier to the right of the people through their legislature to enact 
laws which should have for their sole object the possession of fit and proper 
qualifications for the performance of the duties of a public office on the part 
of him who desired to be appointed to such office. 8o long as the means to 
accomplish such end are appropriate therefor they must be within the legis¬ 
lative power. 

The idea can not be entertained for one moment that any intelligent peo¬ 
ple would ever consent to so bind themselves with constitutional restrictions 
on the power of their own Representatives as to prevent the adoption of any 
means by which to secure, if possible, honest and intelligent service in office. 
Nolaw involving any test other than fitness and ability to discharge the duties 
of the office could be legally enacted under cover of a purpose to ascertain or 
prescribe such fitness. Statutes looking only to the purpose of ascertaining 
whether candidates for an appointive office are possessed of those qualifica¬ 
tions which are necessary for a fit and intelligent discharge of the duties per¬ 
taining to such office are not dangerous in their nature, and in their execu¬ 
tion they are not liable to abuse in any manner involving the liberties of the 
people. 

And, again, on page 190: 

In this case we simply hold that the imposing of a test by means of which 
to secure the qualifications of a candidate for an appointive office, of a nature 
to enable him to properly and intelligently perform the duties of such office, 
violates no provision of our Constitution. 

This opinion was delivered by Justice Peckham, now a member 
of the Supreme Court of the United States. 

Another instructive case is that of Ohio ex rel. Attorney-General 
vs, Covington (29 Ohio State, page 102). The opinion is by Judge 
Mcllvaine, one of the ablest and most careful judges that ever sat 
in the supreme court of Ohio. He says: 

The last objection made to the validity of this act is based on section 4 of 
article 15 of the constitution, which declares: “ No person shall be elected or 
appointed to any office in this State unless ho possesses the qualifications of 
an elector.” 

The question arises under the fourth section of the act (which the court is 
construing), which provides: ” Each member and officer of the police force 
shall be a citizen of the United States, and a resident citizen for three years 
of the city in which he shall be appointed, and able to read and write the 
English language.” 

There is no claim made that the qualifications prescribed in the act, in view 
of the nature of the duties to be performed, are unreasonable, or evenunnec- 
essaiTi to the discharge of the duties. The point made is that disqualifica¬ 
tions aro imposed by the statute which are not imposed by the constitution. 

It is apparent that this statute is not in conflict with the terms of this con¬ 
stitutional provision. It does not authorize the appointment of a person who 
is not an elector. The express provision of the constitution is that a person 
not an elector shall not be elected or appointed to any office in this State. 
Now, unless the clear implication is that every person who has the qualifica¬ 
tions of an elector shall be eligible to any office m this State, there is no con¬ 
flict between the statute and the constitution. I do not believe that such im¬ 
plication arises. 

There are many offices the duties of which absolutely require the ability 
of reading and writing the English language. There are many electors who, 
from habit of life or otherwise, are wholly unfit to discharge the duties of 
many offices within this State. If the framers of the constitution had 
intended to take away from the legislature the power to name disqualifica¬ 
tions for office other than the one named in the constitution, it would not 
have been left to the very doubtful implicati on which is claimed from the 
provision under consideration. The power under the general grant being 
ample and certain, a statute should not be declared void because in conflict 
witn an alleged implication, unless such implication be clear and indubitable. 

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We find the same doctrine in the case of Darrow vs. The People 
(8 Colorado, page 417). The syllabus relating to this question is 
as follows; 

The statute designating the payment of taxes as a necessary qualification 
of membership in the board of aldermen is not in conflict with section 6, arti¬ 
cle 7, of the constitution. • 

The i)rovision of that section is as follows: 

No person except a qualified elector shall bo elected or appointed to any 
civil or military office in the State. 

The court says, on page 420, that it is argued that this provision— 
by implication inhibits the legislature from adding the property qualifica¬ 
tion under consideration. There is nothing in the constitution which ex¬ 
pressly designates the qualifications of councilmen in a city or town, and this 
section contains the only language that can possibly be construed as applica¬ 
ble thereto. But it will be observed that the language used is negative in 
form—that it simply prohibits the election or appointment to office of one 
not a qualified elector. There is no conflict between it and the statute. By 
providing that a supervisor or an alderman shall be a taxpayer the legisla¬ 
ture does not declare that he need not be an elector. Nor is the provision at 
all unreasonable. On the contrary, it is a safeguard of the highest impor¬ 
tance to property owners within the corporation. 

The right to vote and the right to hold office must not be confused. Citi¬ 
zenship and the requisite sex, age, and x’esidence constitute the individual a 
legal voter; but other qualifications are absolutely essential to the efficient 
performance of the duties connected with almost every office. And certainly 
no doubtful implication should be favored for the purpose of denying the 
right to demand such additional qualifications as the nature of the particular 
office may reasonably I’cquire. We do not believe that the framei*s of the 
Constitution, by this provision, intended to say that the right to vote should 
be the sole and exclusive test of eligibility to all civil offices, except as other¬ 
wise provided in the instrument itself; that no additional qualifications should 
ever be demanded, and no other qualifications should be imposed. 

Legislative Precedents. 

I proceed now to the legislative precedents upon this matter of 
exclusion, without admitting the person objected to to be sworn in. 

JEREMIAH DARNED. 

One Jeremiah Lamed, as long ago as 1785, was elected to the 
legislature of Massachusetts, but it turned out that he had vio¬ 
lated a law that that legislature had passed. And what was it? 
On election day he headed a riot for the purpose of preventing the 
collection of taxes. What did the fathers of that day do? They 
were not men who were regardless of human rights; they held 
that inasmuch as Lamed had violated the law he was unworthy 
to take a seat upon that floor, and they kept him out. 

JOHN M. NILES. 

In the first session of the Twenty-eighth Congress, on the 30th 
of April, 1844, the credentials of John M. Niles as a Senator from 
Connecticut were presented to the Senate and objection was made 
to the oath being administered. Mr. Jam agin submitted a reso¬ 
lution referring the credentials of Mr. Niles to a select committee, 
which was instructed— 

To inquire into the election, return, and qualifications of the said John M. 
Niles, and into his capacity at this time to take the oath prescribed by the 
Constitution of the United States. 

Mr. Jarnagin himself made a speech at that time, in which he 
took the view that it was a question of eligibility that was raised, 
and that a man who was insane was ineligible, and of course in¬ 
capable of taking the oath. There was some discussion about it, 
and some doubt raised, and Mr. Niles’s colleague said he had no 
objection to the matter going to the committee. 

On May 16 following, the committee reported in favor of per¬ 
mitting Mr. Niles to take the oath, which was then administered. 
It appears from the report that Mr. Niles had been suffering 
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43 


from severe bodily afflictions which impaired his mind to snch an 
extent that he was removed to the insane asylum at Utica, N. Y., 
where he remained until April 1, 1844, after which he was dis¬ 
charged as improved, but not completely restored to health. The 
committee reported that while Mr. Niles was laboring under 
mental and physical disability, he was not of unsound mind in 
the technical sense of that phrase. 

If this case establishes anything, it establishes the right of the 
Senate to protect itself against a person of infirm or unsound 
mind; that it recognized that it had the right to exclude a person 
possessed of every qualification which the Constitution required 
if he was not of sound mind. 

PHILIP F. THOMAS. 

Another case in the Senate was that of Philip F. Thomas, of 
Maryland, in the Fortieth Congress. His credentials were pre¬ 
sented on March 18, 1867, and the following day were referred to 
the Judiciary Committee. There was a very elaborate debate. 

The charge against him was that he had been disloyal, and that 
he was therefore incapable of taking the test oath which was pro¬ 
vided for in the act of July, 1862. 

The resolution which was then adopted, and under the provisions 
of which Thomas was excluded from the United States Senate, 
was as follows: 

Resolved^ That Philip F. Thomas having voluntarily given aid, counte¬ 
nance, and encouragement to persons engaged in hostility to the United 
States, is not entitled to take the oath of office as a Senator of the United 
States from the State of Maryland, or to hold a seat in this body as such 
Senator, and that the President pro temporo of the Senate inform the gov¬ 
ernor of the State of Maryland of the action of the Senate in the premises. 

The vote for exclusion was 27 to 20. Among those voting in the 
negative was Lyman Trumbull. He did so because he thought 
the proof of disloyalty was unsatisfactory. 

His position on the question involved had, however, been clearly 
and unmistakably defined in the case of 

BENJAMIN STARK, 

who was appointed a Senator from Oregon early in 1862. 

There were ex parte affidavits as to Stark’s disloyalty. He was 
not permitted at first to take the oath, and his case went to a com¬ 
mittee, which reported in favor of letting Stark be sworn in, but 
without passing at all on the facts. The discussion of the case, 
however, showed that it would be impossible to take proof before 
the legislature of Oregon elected his successor. The state of the 
proof was so unsatisfactory also that on the resolution to expel 
Stark not even a majority voted in the affirmative. On the pre¬ 
liminary question Mr. Trumbull, February 7, 1862, made an able 
and conclusive report. He said: 

That an avowed traitor, a convicted felon, or a person known to be disloyal 
to the Government has a constitutional right to be admitted into the body 
would imply that the Senate had no power of protecting itself—a power 
which, from the nature of things, must be inherent in every legislative body. 
Suppose a member sent to the Senate, before being sworn, were to disturb 
the body and by violence interrupt its proceedings, would the Senate be 
compelled to allow such a person to be sworn as a member of the body before 
it could cast him out? Surely not, unless the Senate is unable to protect 
itself and preserve its own order. The Constitution declares “ that each 
House may determine the rules of its proceedings, punish its members for 
disorderly behavior, and, with the concurrence of two-thirds, expel a mem- 
bci*. 

The connection of the sentence in which the power of expulsion is given 
would indicate that it was intended to be exercised for some act done as a 
member, and not for some cause existing before the member was elected oy 
took his seat. For any crime or infamous act done before that time the 

4009 


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44 


appropriate remedy would seem to be to refuse to allow him to qualify, 
which, in the Judgment of the undersigned, the Senate may properly do, not 
by way of adding to the qualifications imposed by the Constitution, but as a 
punishment due to his crimes for the infamy of his character. 

There is absolutely no doubt whatever that if the case of dis¬ 
loyalty had been stronger Stark would have been excluded. The 
weakness of the case in that respect is manifest when we remem¬ 
ber that less than a majority voted to expel him. 

KENTUCKY CASES. 

On the 3d of July, 1867, the members-elect from the State of . 
Kentucky presented their credentials to the House. They were 
not then permitted to be sworn in, on the ground that they had 
been disloyal or had expressed disloyal sentiments. 

If there is any criticism to be lodged against the action of the 
House at that time, it is not thatthe theoretical ground upon which 
they based their action was untenable, but that they undertook to 
exercise the power to exclude a man for disloyalt}" years after he 
had been disloyal, as alleged, and after the time in which alone 
he could have been disloyal. 

The Committee on Elections, which took jurisdiction of the case 
under the order of the House, made several reports, all of which 
were of the same general character and all of which were sus¬ 
tained by the House. The reports were carefully prepared and 
were most elaborately argued. 

From the report filed by Mr. Dawes, as chairman, I quote as 
follows: 

The committee are of the opinion that no person who has been engaged in 
armed hostility to the Government of the United States, or who has given 
aid and comfort to its enemies during the late rebellion, ought to be per¬ 
mitted to be sworn as a member of this House, and that any specific and ap¬ 
parently well-grounded charge of personal disloyalty made against a person 
claiming a seat as a member of this House ought to'be investigated and re¬ 
ported upon before such person is permitted to take the seat. 

A second report was filed, in which it is said: 

The committee adhere to the views expressed in the former report, that 
no man who has been engaged in an attempt to overthrow the Government 
and subvert the Constitution by force of arms, or who has voluntarily given 
aid, countenance, counsel, or encouragement to persons so engaged, ought to 
be admitted to a seat in this House to make laws for the nation he has traitor¬ 
ously sought to destroy; and it is apparent that there must be power in this 
House to prevent this, the House being the Judge of the qualifications of its 
members, of which fidelity to the Constitution is one, and that this end can 
only be certainly accomplished by the investigating of any specific and ap¬ 
parently well-grounded charge of personal disloyalty made against a person 
claiming his seat as a member of this House before such person is pei’mitted 
to take the seat. 

The House concurred in this view of the committee by adopting the reso¬ 
lution under which the committee is now acting. The principle upon which 
this preliminary investigation was ordered was adopted by Congress when 
the oath of ofiice to bo taken by members of this House was prescribed by 
law, and the preliminary investigation of specific and apparently well- 
founded charges against a person claiming a seat in this House is only an ad¬ 
ditional mode of attaining the same result sought to be secured by requiring 
the oath to be taken by all persons who become members of the House. 

From time to time after the objection was made to the swear¬ 
ing in of other members-elect, the House assumed jurisdiction, 
tried the cases in advance of administering the oath, and where, 
as sometimes had been the case, it appeared thatthe claimant had 
not been disloyal he was of course sworn in; in other cases he was 
excluded. 

As showing that the House in acting in the Kentucky and other 
cases in the Fortieth Congress was not precipitate and wanting 
in deliberation, I call attention to the resolution adopted by the 
House of Representatives on the 22d of March, 1869. This was 

4009 


45 


fonr years after the war and nearly two years after the Kentucky 
cases arose, when it may fairly be said that a deliberate judgment 
had been reached respecting the right of Congress in a proper case 
to exclude a member-elect. 

On the 22d of March, 1869, the following was adopted as the 
permanent rule of the House: 

Resolved, That in all contested-election cases in which it shall bo charged 
by a party to the case, or a member of the House, that either claimant unable 
under the act approved July 2, 1862, entitled “An act to prescribe the oath of 
office, and for other purposes,” it shall be the duty of the committee to ascer¬ 
tain whether such disability exist, and if such disability shall be found to 
exist the committee shall so report to the House and shall not further con¬ 
sider the subject without the further order of the House, and no compensa¬ 
tion will be allowed by the House to any claimant who shall not have been 
entitled at the time of the election, and whose disloyalty shall not have been 
removed by act of Congress. 

This rule, it will be observed, is independent of the mere dis¬ 
qualification for disloyalty, but is intended to exhibit the matured 
determination of the House of Representatives to insist not only 
upon the oath required by the act of July 2, 1862, but also that 
the person claiming the right to take the oath should show his 
right to do so. 

The test-oath act only required that he take the oath, but the 
House held that it had a right to inquire whether he had the ca¬ 
pacity to take the oath, which v/as an exercise of an original 
power, not based upon any statute. 

WHITTEMORE CASE. 

Again, in the Forty-first Congress the House of Representatives 
asserted its right to exclude from membership a Representative- 
elect with a perfect certificate and possessing all of the so-called 
constitutional qualifications. This is the case of Whittemore, 
from South Carolina. It must be remembered that Whittemore 
was a Republican and that he brought his certificate to a Repub¬ 
lican House of Representatives. Previously, on the 24th day of 
February, 1870, he had resigned in order to avoid a vote on a res¬ 
olution of expulsion which had been reported to the House. 

It was charged against him that he had sold a cadetship, and 
that therefore he was unworthy to continue to be a member of 
the House. His resignation, however, prevented action upon the 
resolution of expulsion, and the House contented itself with the 
adoption of a resolution of censure. Whittemore returned to his 
constituency, a special election was ordered, and he was reelected 
and returned to the same session of Congress, with his certificate 
of election under the broad seal of the State of South Carolina. 
Objection was made by General Log<an, and after some discussion 
the matter was postponed until June 21. General Logan made a 
powerful speech, in which he asserted the right to exclude a man 
guilty of an offense such as Whittemore had committed. In this 
debate he said, among other things: 

It is said that the constituency had the right to elect such a member as 
they may think proper. I say no. We can not say that he shall be of a cer¬ 
tain politics, or of a certain religion, or anything of that kind; but, sir, we 
have the right to say that he shall not be a man of infamous character. Ho is 
not merely a representative of the constituents who elect him, but his vote 
in the House is a vote for the whole nation. It is a vote for the people of the 
whole country, and every district in the United States has the same interest 
in his vote that ^is own district has. 

Hence, if Congress shall not have the power or authority or shall not have 
the right to exclude a man of that kind, then the rights of the people of the 
whole country may be destroyed by a district sending a Representative who 
may be obtained to vote in a manner which may be destructive of the rights 
of the people. Are we to be told that Congress has no right to prevent any- 
4009 


46 


thing of this kind because of the right of any constituency to send whom¬ 
soever they please? 

* :ie * !)< ♦ * 

It is not that the people shall not be represented. Not at all. It is this: 
That the people of the country have no right to destroy their own liberties 
by tilling Congress with men who, from their conduct, show themselves capa¬ 
ble of the destruction of their Government. 

Congress, being the representatives of the whole people, are entitled to say 
that the rights of the whole country shall not be destroyed by one or more 
districts throwing in here a man, or set of men, capable of their destruction; 
and that, having knowledge of the facts, and the power to prevent the mis¬ 
chief by exercising the right of exclusion, they have a right to exercise that 
power, and thereby protect the interests of the countr}^ and to preserve 
instead of destroy the right of representation. 

* * * ■I' * * 

For crime, sir, we have a right to proscribe a man. That is the ground I 
put it on. That is the groiind on which I put it first, and that is the ground 
on which I put it now. We have a right, I say, to protect the interests of the 
country by excluding men from these halls on the ground of crime. It is not 
a crime to be a Democrat or a Republican, to be a Presbyterian or a Methodist, 
or a member of any other denomination: but, sir. it is a crime for a man to 
do what this man has done. And why? Because the laws of our country de¬ 
nominate it a crime. It is made a crime by law. Hence my theory is based 
on the law, and is this, that in pursuance of the law and in carrying out its 
principles we must protect the country by protecting ourselves against 
crime and against criminals in this body. That is the ground I took and the 
theory I stated. 

The principal ground of objection was to immediate action, and 
the claim was made that the case ought to be sent to a committee 
to determine Whittemore’s right to be sworn in. Logan replied 
that the House was in possession of all the facts. He withdrew 
the demand for the previous question and the debate proceeded. 
Later on he said he supposed if there were not more than seven¬ 
teen or eighteen who wanted to speak, of course it would not take 
much time, and that the House could vote down the previous ques¬ 
tion if it wanted more discussion. He said he did not care 
whether the House sustained the demand for the previous question 
or not. But the House seemed to be much more insistent than 
Logan, for the previous question was ordered and the vote on the 
main question was 130 to 24. No doubt some of those who voted 
in the negative were opposed to exclusion. 

But the most of them must have felt as did Mr. Farnsworth, 
who said: 

I do not know but that when this matter is properly investigated I shall 
also vote for excluding Mr. Whittemore from a seat, but I think it ought to 
bo first investigated by a committee. 

The resolution in this case provided for the return of his cre¬ 
dentials to Whittemore and his exclusion from the House. 

Now, what do our friends say about that case? Well, that is 
not authority either, they say. They whistle down the wind the 
Whittemore case as they whistle down the wind everything else 
that does not accord with their views. The Whittemore case is 
absolutely sound. The speech of General Logan expresses the 
principle with clearness and cogency upon which, with propriety, 
that man was excluded, and the most eminent men in the House 
of Representatives voted for it, among them Garfield and Randall 
and S. S. Cox and Judge McCrary and many others. 

GEORGE Q. CANNON. 

The case of George Q. Cannon, who was excluded from the 
Forty-seventh Congress as a Delegate on the ground that he was 
a polygamist, on principle clearly sustains the proposition of ex¬ 
clusion of a member. 

4009 


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47 


It is true that when excluded Cannon was merely a Delegate- 
elect from the Territory of Utah, and not a person elected to an 
office created by the Constitution. 

Nevertheless, we assert that on principle that case can not he 
differentiated from the case at bar. 

Allen G. Campbell was a candidate for Delegate from the Terri¬ 
tory of Utah against George Q. Cannon in 1880. Campbell received 
about 10 per cent of the votes cast, and the governor issued a cer¬ 
tificate to him on the theory that Cannon was ineligible to be a 
Delegate in Congress. Campbell’s seat was contested by Cannon. 
The committee, in January, 1882, made a very elaborate report. 
All but one united in declaring that Campbell, not having re¬ 
ceived a majority of the votes, was not entitled to a seat, and the 
dissenting member finally agreed with the majority, that what¬ 
ever Cannon’s rights might be, Campbell ought not to be seated. 

A considerable majority of the committee further found that as 
Cannon was a polygamist, he was ineligible and disqualified to be 
Delegate in Congress. At this time the Edmunds law had not 
been passed, and there was no statutory ground of ineligibility. 

Some members of the committee undertook to differentiate be¬ 
tween the right of the House to exclude a Member and its right 
to exclude a Delegate, while other members insisted that, while 
there was a sharp distinction to be drawn between a Member and 
a Delegate, yet that in so far as the matter of ineligibility on the 
ground of polygamy was concerned, the same principle would 
apply to hoth. 

This, then, was the condition of the Cannon case before the 
Edmunds law was passed. The committee was unanimously of 
the opinion that Cannon was duly elected a Delegate from the 
Territory of Utah, and therefore that he was entitled to hold the 
certificate of election; that he stood in the attitude of a man ap¬ 
pearing before the bar of the House with the proper certificate of 
the governor of the Territory of Utah and with no infirmity ex¬ 
cept that which went to his disqualification, namely, the fact of 
polygamy. 

Before the case was taken up in the House for discussion and 
action the Edmunds law was passed. Mr. Cannon in his speech 
says that there were some members of the House who had told 
him that while they would not have excluded him under the re¬ 
port of the committee, they would then vote to exclude him be¬ 
cause of the provisions of section 8 of the Edmunds Act; and Mr. 
Ranney, of Massachusetts, a member of the Committee on Elec¬ 
tions, who had dissented from the majority report, declared that 
he felt compelled to vote in favor of the exclusion of Cannon be¬ 
cause of the passage of that law. 

Nevertheless, the fact appears, and I believe it to be the just 
inference from what occurred from the report of the committee 
and the debate on the floor of the House, that Cannon would have 
been excluded if the Edmunds law had never been passed.^ The 
vote in favor of allowing him his seat was 79, and against it 123. 

When we look at the arguments made on both sides of this 
House, it will be discovered that he would have been excluded if 
the House had come to pass upon it before the passage of the 
Edmunds law. 

Statutory Precedents. 

I come now to the statutory declarations where disqualifications 
have been imposed. 

4009 


48 


Section 21 of the act of April 30, 1790, is as follows: 

That if any person shall, directly or indirectly, give any sum or sums of 
money, or any other bribe, present, or reward, or any promise, contract, 
obligation, or security, for the payment or delivery of any money, present, 
or reward, or any other thing, to obtain or procure the opinion, judgment, 
or decree of any judge or judges of the United States, in any suit, contro¬ 
versy, matter, or cause depending before him or them, and shall be thereof 
convicted, and so forth, shall be confined and imprisoned, at the discretion 
of the court, and shall forever be disqualified to hold any office of honor, 
trust, or profit under the United States. 

Section 5499, which was passed in 1791, provides: 

That every judge of the United States who in anywise accepts or receives 
any sum of money or other bribe, etc., shall be fined and imprisoned, and 
shall bo forever disqualified to hold any office of honor, trust, or profit under 
the United States. 

IS A MEMBER OF CONGRESS AN OFFICER? 

Before citing other acts of Congress, it is proper to discuss the 
question as to whether a member of Congress is an officer within 
the meaning of the statute. 

If a member of Congress is not an officer, if the qualifications 
of a member of Congress are only those named in the Constitu¬ 
tion, then, of course, the makers of the Constitution meant that 
nobody could be made ineligible for Congress, either by law or by 
the act of either body, even though laws passed immediately after 
the adoption of the Constitution made him ineligible for all other 
positions under the Government. 

Now, upon that proposition I make these observations, as to the 
meaning of the word “office.” 

First. Undoubtedly under the Constitution, in one or two in¬ 
stances, the word “ office” does not include Representative in Con¬ 
gress, as, for example, the last paragraph of section 6, Article I: 

No person holding any office under the United States shall be a member of 
either House during his continuance in office. 

In that case the words ‘ ‘ holding any office ” means an office other 
than a member, but the context is absolutely unmistakable, and 
no person is in danger of assuming, even if a member of Congress 
hold an office, that it meant to say that no member of Congress 
shall be eligible to be a member of Congress. 

In the second place, the provision in the last paragraph of sec¬ 
tion 3 of Article II, relating to the duties of the President, that he 
shall commission all the officers of the United States, does not 
mean that he is to commission members of Congress; but he is 
himself an officer, and he does not commission himself, nor does 
he commission the Vice-President, who is also an officer under the 
United States. 

So also paragraph 2, section 1, Article II: 

But no Senator or Representative, or person holding an office of trust or 
profit under the United States, shall be appointed an elector. 

There the distinction is made, “No Senator or Representative, or 
person holding an office of trust.” 

But under the Constitution the word “office” must include in 
certain of its provisions a Representative in Congress. 

It is inconceivable that in the Constitution the word “office” 
never includes a member of Congress. Look at the last paragraph 
of section 3, Article I: 

Judgment in cases of impeachment shall not extend further than to re¬ 
moval from office and disqualification to hold and enjoy any office of honor, 
trust, or profit under the United States. 

Is it conceivable that the framers of the Constitution meant 
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49 


that a man might he adjudged guilty in case of impeachment 
and that that judgment of guilty could carry with it a judgment 
disqualifying him from holding any office save only to be a Rep¬ 
resentative or Senator in Congress? 

Paragraph 8, section 9, Article I, is as follows; 

No title of nobility shall be granted by the United States, and no person 
holding any office of profit or trust under them shall, without the consent of 
the Congress, accept of any present, emolument, office, or title of any kind 
whatever, from any king, prince, or foreign state. 

Did the Constitution mean that Representatives and Senators 
in Congress could receive emoluments, presents, office, or title 
from some king, j^t’ince, or foreign state, but no other person 
holding an office could without the consent of Congress? 

But in the next place, as to statutes. Whatever may be held to 
be the meaning of the word “ office ” in the Constitution, it does 
not follow that the same meaning must be given to it in the 
statutes. We find a varying meaning in the Constitution, and we 
find a varying meaning in the statutes. The act of 1790 has al¬ 
ways been assumed to cover members of Congress. 

Section 5500 of the Revised Statutes, originally passed in 1853, 
and now in substantially the form in which it was when orig¬ 
inally passed, provides: 

Any member of either House of Congress who asks, accepts, or receives 
any money, or any promise, contract, undertaking, obligation, gratuity, or 
security for the payment of money, * * * either before or after he has 
been qualified or has taken his seat as such member, with intent to have his 
voteordecisiononanyquestion,matteT*, cause, or proceeding * * * pend¬ 
ing in either House, * * * shall be punished by a fine, etc. 

Section 5502 is as follows: 

Every member, officer, or person convicted under the provisions of the 
two preceding sections who holds any place of profit or trust shall forfeit 
his office or place, and shall thereafter be forever disqualified from holding 
any office of honor or trust or profit under the United States. 

This section applies explicitly to a member of Congress, and 
brings forfeiture of the office or place held by him. If “ office”in 
this section does not include a member of Congress, the word 
“place” must include him. 

Now, the word “office’* in that concluding part of this section 
must refer to member. First, because the word “office” is used 
in the preceding line as necessarily including a place that is held 
by a member. It can not fail to include that, for it refers to a 
“member” and what shall happen to him. In the next place, 
because it is not conceivable that the legislative body intended 
that the violation of that law by a member should forfeit the posi¬ 
tion that the member had and then not intended to disqualify him 
from being elected again as a member of the blouse when it dis¬ 
qualifies him from holding all other offices or places under the 
United States. 

But that is not the only statutory construction ot the word 
“ office. ” It is still more explicitly declared in the test-oath act of 
July 2, 18G2: 

That hereafter every person elected or appointed to any office of honor or 

f irofit under the Government of the United States, either in the civil, mili¬ 
ary. or naval departments of the United States, excepting the President of 
the United States, shall, before entering upon the duties of such office and 
before being entitled to any of the salary or other emoluments thereof, take 
and subscribe the following oath or affirmation: 

“I, A B, solemnly swear (or affirm) that I have never voluntarily borne 
arms against the United States since I have been a citizen thereof; that I 
have voluntarily given no aid, countenance, counsel, or encouragement to 
persons engaged inarmed hostility thereto; that I have neither sought nor 
accepted nor attempted to exercise the functions of any office whatever 

4009-4 


50 


under any authority or pretended authority in hostility to the United States; 
that I have not yielded a voluntary supp >- t to any pretended goverament, 
authoritj’’, power, or constitution within the United States hostile or inimical 
thereto. ^ , _ 

"‘And I do further swear (or affirm) that to the best of my knowledge and 
ability I will support the Constitution of the United States against all ene¬ 
mies, foreign and domestic; that I will bear true faith and allegiance to the 
same; that I take this obligation freely, -without any mental reservation or 
purpose of evasion, and that 1 will well and faithfully discharge the duties 
of the office on which I am about to enter, so help mo God.” 

Which said oath, so taken and signed, shall be pre.served among the files of 
the court. House of Congress, or Department to which the said office may 
appertain. 

Any person who shall falsely take the said oath shall be guilty of perjury, 
and on conviction, in addition to the penalties now prescribed for that offense, 
shall be deprived of his office and rendered incapable forever thereafter of 
holding any office of trust under the United States. 

It will be noticed that the only person required to take that oath 
is an officer, a person elected or appointed to anj’^ office of honor or 
profit, but it does not iiiclnde in this phraseology a member. 

By reference to the concluding portion of the act it will appear 
that the word “office” does include a member of Congress: 

Which said oath so taken and signed shall be preserved among the files of 
the court. House of Congress, or Department to which the said office may 
appertain. 

We not only have the use of the word “Congress ” as indicat- 
mg to what the word “ office ” appertains, but also the universal, 
unquestioned construction by the acts of the Senate and of the 
House in compelling the test oath to be taken year after year until 
it was repealed. Each House of Congress recognized that that 
oath was an oath to be taken by a Representative in Congress, 
notwithstanding the fact that the act passed made it apply only 
to a person elected or appointed to an office of honor or trust in 
the United States. 

I quote this section here as well for the purpose of showing the 
Congressional precedents imposing a substantial qualification or 
disqualification upon the members of Congress really substantial 
in its character, as the facta of history show, as to exhibit what 
is meant in the statutes by the word “office.” 

There are many other statutory provisions, passed from time to 
time since 1790, disqualifying for office of trust or profit under the 
United States persons guilty of the several crimes defined in those 
statutes. I do not refer to them specifically, but they are illus¬ 
trated by the statutes already quoted. 

It ought also to be said that section 8 of the Edmunds Act, 
whatever meaning may be given to it, evidences the legislative 
■will to disqualify polygamists for office. It indicated the legisla¬ 
tive purpose so aptly described by Justice Matthews, in the Ram¬ 
sey case, when he said that no more cogent or salutary method 
could be taken than was taken by the Edmunds Act, which under¬ 
took to withdraw from all political influence those persons who 
showed a practical hostility to the development of a common¬ 
wealth based upon the idea of the union for life of one man and 
one woman in the holy estate of matrimony. 

The statutory declaration, if I may use that form of expression 
as applicable to the joint action of the House, coupled with the 
President’s approval, is only a more solemn declaration by both 
Houses of the principle that it has the right to exclude under cer¬ 
tain conditions; that either House may do it. That very point 
was made in the discussion on the test oath in the Senate—that of 
course that law could not with certainty bind any succeeding 
Senate or any succeeding House, but that it was apparent that 
4009 



51 


80 long as there existed any necessity for such an oath, and in 
the very nature of things the time would come in a few years 
when it would not be necessary, either House would respect its 
requirements and compel a submission to it; and that was the 
action of the Senate and House for nearly twenty years. 

THE INELIGIBILITY CREATED BY THE EDMUNDS ACT. 

Having in mind that portion of this report in which I have 
heretofore set out the status and condition of Brigham H. Roberts, 
I would inquire where the specific provisions of the Edmunds 
Act place him. 

Two facts appear as pertinent to this inquiry. 

First. That he was convicted in 1889 of unlawful cohabitation 
under that act and served a term in the penitentiary therefor. 

Second. That he has been ever since 1885, and is now, a polyga¬ 
mist, as that word is used in section 8 of the Edmunds Act and 
defined by the Supreme Court of the United States in the cases of 
Murphy vs. Ramsey (114 U. S., 15) and Cannon vs. The United 
States (116 U. S., 55). Section 8 is as follows: 

No polygamist, bigamist, or any person cohabiting with more than one 
woman, and no woman cohabiting with any of the persons described as afore¬ 
said in this section in any Territory or other iilace over which the United 
States have exclusive jurisdiction, shall be entitled to vote at any election 
held in any such Territory or other place, or be eligible for election or 
appointment to, or be entitled to hold, any office or place of public trust, 
honor, or emolument in, under, or for any such Territory or place, or under 
the United States. 

Reading that act as applicable to this case, eliminating the ir¬ 
relevant portions, it appears as follows: 

No polygamist shall be entitled to hold any office or place of public trust, 
honor, or emolument under the United States. 

In the Ramsey case, above referred to, a specific distinction is 
made between a polygamist and a person cohabiting with more 
than one woman. A polygamist is a person having a certain 
status respecting more than one woman. 

The condition, therefore, of a polygamist may be merely passive 
and requiring no affirmative act. To cohabit with more than one 
woman is, however, to do an affirmative thing. The result is that 
one who has two or more wives that he holds out to the world as 
such is a polygamist, wdierever he may be, while one who cohabits 
with more than .one woman is not cohabiting except in the place 
in which, of necessity, cohabitation must occur. 

In the Ramsey case the court illustrated its definition of a po¬ 
lygamist as being a status or condition like any other qualification 
for elector, or for office, and declared that it was as if Congress 
had undertaken to make a married man ineligible. It would be 
the status in that event of being a married man which would cre¬ 
ate and continue the ineligibility. 

It therefore appears that the fact that a man is a polygamist is 
a fact that inheres in him and stays with him, and persists in 
remaining with him w’herever he may go, so long as he is the pos¬ 
sessor of more than one wife; and just as one who is a married 
man in the State of Maryland continues to be a married man if 
he leaves his wife at home and comes to the District of Columbia, 
so Mr. Roberts, being in the condition or status of a polygamist in 
the State of Utah, does not leave that status behind, nor does he 
dissociate himself from that status or cast off the garb of a polyg¬ 
amist by leaving his wives at home and traveling from that State 
into the District of Columbia. 

In the very nature of things the House of Representatives, 
4003 


52 


wherever it is as a House of Representatives, is in a place under 
the exclusive jurisdiction of the United States; therefore when 
Roberts comes into the District of Columbia, in the status of a 
polygamist, he is ineligible under the Edmunds Act to hold any 
office or place under the United States, and therefore ineligible 
to hold the position of member of the House of Representatives. 

THE COMPACT OF STATEHOOD. 

I come now to the third main proposition, that his election in¬ 
volves a breach of the compact and understanding by which Utah 
was admitted to the Union. 

Utah was admitted to the Union with the distinct understanding 
upon both sides that polygamous practices were under the ban of 
the church, prohibited and practically eradicated, both as a prac¬ 
tice and a belief, and that they would not be renewed. 

The effort is made to alarm people upon this proposition that 
some similar objection might be made to rex)resentation from States 
in which the claim might be made that the right to vote was de¬ 
nied to some citizens. It is a sufficient answer to this to say that 
if such ground of complaint exists the Constitution specifically 
tells us what our remedy is; and declares precisely, in the four¬ 
teenth amendment, what we may do in any event when the right 
of suffrage is improperly denied. There is no possible escape from 
that position, even assuming that there was anything in the bogy 
man. 

But as to Utah, she was admitted on the express statement that 
the practice of polygamous living was interdicted by the church, 
was practically abandoned by the people, and eradicated as a be¬ 
lief. Of course, that sporadic instances of the violation of the law 
against cohabitation might occur no one doubted. 

The manifesto forbidding plural marriages and enjoining obedi¬ 
ence to the laws relating thereto was issued by Wilford Woodruff, 
president of the Church of Jesus Christ of Latter-Day Saints, 
September 25, 1890. 

Some doubt having arisen as to whether that manifesto prohib¬ 
ited association in the plural marriage relation as well as the con¬ 
tracting of plural marriages as a ceremony. President Woodruff 
himself testified under oath as follows: 

Q. Did you intend to confine this declaration and advice to the church 
solely to the question of forming new marriages, without‘reference to those 
that were existing—plural marriages? 

A. The intention of the proclamation was to obey the law myself—all the 
laws of the land on that subject—and expecting that the church would do the 
same. 

Q. You mean to include, then, in your general statement the laws forbid¬ 
ding association in plural marriages as well as the forming of new marriages? 

A. Whatever there is in the law with regard to that—the law of the land. 

Q. Let mo read the language, and you will understand me, perhaps, better. 
“ Inasmuch as laws have been enacted by Congress forbidding plural mar¬ 
riages, * * * I hereby declare,” etc. Did you intend by that general 
statement of intention to make the application to existing conditions where 
the plural marriages already existed? 

A. Yes, sir. 

Q. As to living in the state of plural marriage? 

A. Yes, sir; that is, to the obeying of the law. 

Q. In the concluding poi’tion of your statement you say, “I now publicly 
declare that my advice to the Latter-Day Saints is to refrain from contract¬ 
ing any marriage forbidden by the laws of the land.” Do you understand 
that that language was to be expanded to include the further statement of 
living or associating in plural marriage by those already in the status? 

A. Yes, sir; I intended the proclamation to cover the ground—to keep the 
laws, to obey the law myself—and expected the people to obey the law. 

The significance of this statement by the spiritual head of the 
church is the more apparent when we remember that it was made 
4009 


53 


but a short time before the’question of the admission of Utah was 
debated in the House of Representatives. 

Is it to be an occasion for wonder, therefore, that the proclama¬ 
tion of amnesty issued by President Harrison, January 4, 1893, 
should contain these words: 

Whereas it is represented that since the date of said declaration the mem¬ 
bers and adherents of said church have generally obeyed said laws and ab¬ 
stained from plural marriages and polygamous cohabitation; and 

Whereas by a petition dated December the 19th, 1891, the officials of said 
church, pledging the membership thereof to the faithful obeyance of the 
laws against plural marriages and unlawful cohabitation, applied to me to 
grant amnesty for past offenses against said laws. 

Is it strange that the House Committee on Territories in 1893 
should report that “polygamy is dead?” And if that is not fully 
convincing, let the unprejudiced mind consider the following ex¬ 
tracts from the debate in the House of Representatives on the ad¬ 
mission of Utah, December 12, 1893: 

Mr. Rawlins, the Delegate from the Territory, seems to have 
hypnotized the House by his eloquence. I quote a sentence or two: 

Mr. Morse. The twin relic of barbarism—polygamy—still lives; and while 
it does live and is in the ascendency I can never vote to admit Utah as a State 
of the Union. 

Mr. Raav LINS. It was found in 1882 there were 2,225 adult male polygamists 
in the Territory of Utah. This report proceeds to say: 

“ It is not denied by the advocates of admission that polygamy is practiced 
in that Territory, but they claim it is not obligatory upon the members of 
the Mormon Church, but that it is gradually dying out until now there are 
comparatively few who are living in polygamous relations, and that this few 
are generally past the meridian of life. They claim that polygamous mar¬ 
riages have ceased to be solemnized, that in the near future polygamy will 
have ceased altogether, and is even now practically dead, and that it is unjust 
to deprive the many of political rights because the comparatively few are 
violating the law in this regard.” 

The majority report of the committee in 1888 found that the practice of 
polygamy had been decreasing. It was claimed then by representatives of 
the Mormon people that poly gamy had been forbidden by the Mormon Church, 
and they asserted that it was no longer in existence and would not revive. 

Mr. Morse. Will the gentleman allow me to ask a question right there? 

Mr. Rawlins. Yes, sir. 

Mr. Morse. Is it not a fact that prior to the election of the gentleman the 
Territory of Utah sent here as their representative Mr. Cannon, who had six 
wives? 

Mr. RAWLIN.S. No, sir. 

Mr. Morse. How many wives did he have? 

Mr. Rawlins. You mean George Q. Cannon? 

Mr. Morse. He was a polygamist, was he not? 

Mr. Rawlins. That is ancient history, my friend. Mr. Caine has repre¬ 
sented Utah here; he was my predecessor as the Delegate from the Territory. 
He served here ten years. Mr. Caine is not a polygamist. In 1882 Mr. Can¬ 
non, the polygamist you speak of, was excluded from his seat in Congress on 
account of his polygamy. 

Mr. Morse. But he represented the sentiment of those people all the 
same, because they elected and sent him here. 

Mr. Rawlins. They elected him in years gone by. I am not denying, my 
dear friend, that in 1853 or 1860 or 1875 or 1880 polygamy was practiced in 
Utah. I am not denying that the people of that Territory elected polyga¬ 
mists to office in those old days. But the gentleman does not seem to know 
that the world does progress. [Applause.] _ There is nothing under the sun 
that is not changeable and subject to alteration. 

“ Why,” said Mr. Rawlins, “just let that noble commonwealth 
into the sisterhood of States and then we will show you the mag¬ 
nificent specimens of Utah manhood we will send down here.” 
Well, they have sent the predicted specimen. [Laughter.] 

And so the enabling act was passed. Every incredulous mem¬ 
ber who cast doubt upon the sincerity of polygamists in Utah was 
whistled down the wind. Every legislator who doubted if the 
funeral of polygamy had really taken place was laughed to scorn. 
Polygamy was dead! That was the battle cry, and on it the bat¬ 
tle was fought and won. 

4009 


54 


What would have become of the bill if Mr. Rawlins had de¬ 
clared that the State of Utah, just about to be born, would reserve 
the right to send a polygamist to Congress? His bill would have 
been buried beneath an avalanche of votes beyond the hope of 
resurrection. 

The language of the enabling act is, “ Provided that polygamous 
or plural marriages are forever prohibited.” 

The understanding was that those words prohibited the practice 
of living in the status or condition of polygamous marriage. 

Bouvier’s Law Dictionary says: 

Marriage.—A. contract made in due form of law by which a man and woman 
reciprocally engage to live with each other during their joint lives, and to 
discharge toward each other the duties imposed by law on the relation of 
husband and wife. Marriage, as distinguished from the agreement to marry, 
the mere act of becoming married, is the civil status of one man and one 
woman united in law for life, for the discharge to each other and the com¬ 
munity of the duties legally incumbent on themselves. 

“Marriage” is the legal status or condition of husbands and wives just as 
infancy is the legal relation or condition of persons under age. (1 American 
and English Encyclopedia of Law, volume 14, page 470.) 

The act of marriage having been once accomplished, the word becomes 
afterwards to denote the relation itself. (Schouler on Domestic Eolations, 

a2.) 

Senator Rawlins was asked before the committee on this case 
the following question: 

Without reference to any assumed facts in this case, do you think that 
Congress would have admitted Utah to statehood if it had been predicted 
that Utah would send here in a few years a man as her Representative who 
was polygamously living with more than one wife? 

He answered: 

Ido not think the Congress of the United States would have admitted Utah 
If they at that time had believed that a revival of the practice of polygamy 
would occur. 

It is not to be assumed from the fact that a rare or sporadic case 
of pol^’^gamous marriage occurred in Utah, or sporadic instances of 
unlawful cohabitation had come to light, that that would be a vio¬ 
lation of the agreement; but we take it that it is in the last degree 
a violation of the agreement or understanding when that State 
sends to Congress a man who is himself engaged in the persistent 
practice of the very thing the abandonment of which was the con¬ 
dition precedent to its admission; and that man the most conspic¬ 
uous defier of the law and violator of the covenant of statehood to 
be found in Utah. 

As bearing on this, I here quote the manifesto issued a few 
days ago by the Mormon Church and presented by Senator Raw¬ 
lins to the Senate: 

In accordance with the manifesto of the late President Wilford Woodruff, 
dated September 25,1890, which was presented to and unanimously accepted 
by our general conference on the 6th of October, 1890, the church has posi¬ 
tively abandoned the practice of polygamy, or the solemnization of plural 
marriages, in this and every other State, and that no member or officer 
thereof has any authority whatever to perform a plural marriage or enter 
into such a relation. Nor does the church advise or encourage unlawful 
cohabitation on the part of any of its members. 

In other words, the Mormon Church has left it to us and not to 
the church to say what shall be done with Mr. Roberts. Is the 
House of Representatives to respond in any uncertain tone? 

THE RIGHT TO EXPEL. 

Upon this alternative proposition that the proper method of 
procedure is to permit the claimant to be sworn in, and then, if a 
two-thirds vote can be obtained, to expel him, I desire to call 
4009 


55 

attention first of all to what Story says on that subject, section 
837: 

The next clause is, “Each House may determine the rules of its proceed¬ 
ings, punish its members for disorderly behavior, and, with the concurrence 
of two-thirds, expel a member.” No person can doubt the propriety of the 
provision authorizing each House to determine the rules of its own proceed¬ 
ings. If the power did not exist, it would be utterly impracticable to trans¬ 
act the business of the nation, either at all, or at least with decency, deliber¬ 
ation, and order. The humblest assembly of men is understood to possess 
this power, and it would bo absurd to deprive the councils of the nation of a 
like authority. 

But the power to make rules would be nugatory unless it was coupled 
with a power to punish for disorderly behavior or disobedience to those 
rules. And as a member might be so lost to all sense of dignity and duty as 
to disgrace the House by the grossness of his conduct, or interrupt its delib¬ 
erations by perpetual violence of clamor, the power to expel for very aggra¬ 
vated misconduct was also indispensable, not as a common but as an ultimate 
redress for the grievance. 

Anti again, section 838: 

What must be the disorderly behavior which the House may punish, and 
what punishment other than expulsion may bo inflicted, do not appear to 
have been settled by any authoritative adjudication of either House of Con¬ 
gress. A l<iarned commentatf*;.* supposed that members can only be pun¬ 
ished for misbehavior committed during the session of Congress, either 
within or without the walls of the House, though he is also of opinion that 
expulsion may be inflicted for criminal conduct comisnitted in any place. 

And after a reference to the Blount case, Story says: 

It seems, therefore, to be settled by the Senate upon full deliberation that 
expulsion may be for any misdemeanor which, though not punishable by any 
statute, is inconsistent with the trust and duty of a Senator. 

On the subject of expulsion, Rawle says, second edition, page 48: 

Both the Senate and the House of Representatives possess the usual power 
to Judge of the elections and qualifications of their own members, to punish 
them for disorderlj’’ behavior, which may be carried to the extent of expul¬ 
sion, provided two-thirds concur. It had not been yet precisely settled what 
must be the disorderly behavior to incur the punishment, nor what kind of 
punishment is to be inflicted. * * * 

Paschal on the Constitution, page 87: 

It seems to be settled that a member may be expelled for any misdemeanor 
which, though not punishable by any statute, is inconsistent with the trust 
and duty of a member. 

We do not need to call particular attention to the phraseology 
of the constitutional provision, nor do we think it very important 
to consider the evolution, from the standpoint of punctuation, 
through which that provision went in the Constitutional Conven¬ 
tion. It now appears as following in the same sentence as the 
provision for disorderly behavior, with only the rhetorical separa¬ 
tion of a comma from it. 

It thus appears that the language of the provision for expulsion, 
in the view of the ablest commentators, furnishes clear and cogent 
reasons for its construction, and that neither House caght to ex¬ 
pel for any cause unrelated to the trust or duty of a member. 

This has been the uniform practice of both Houses of Congress. 

The case of Hiss vs. Bartlett (3 Gray, 468) is cited as showing 
the unlimited power of a legislative body to expel. 

A casual reading of this case, which a careful reading confirms, 
will show that it &ectly sustains the position of the majority. 

As there was no constitutional provision in Massachusetts re¬ 
specting expulsion, the legislature of that State was, of course, 
clothed with all the powers incident to expulsion which are in¬ 
herent in a legislative body whose powers are not limited by a 
constitution. 

In addition to that, Hiss was expelled on the ground that his 

4009 


56 


“ conduct on a visit to Lowell, as one of a committee of the house, 
was highly improper and disgraceful, both to himself and to the 
house of which he was a member.” 

Everything said by the court had relation to such a state of 
facts. The case is one of expulsion for gross misconduct as a 
member and in the performance of his duty as a member. 

Neither House has ever expelled a member for any cause unre¬ 
lated to the trust or duty of a member. 

Both Houses have refused to expel where the proof of guilt was 
clear, but where the offense charged was unrelated to the trust or 
duty of a member. 

HUMPHREY MARSHALIi. 

The Senate in 1796 refused to expel Humphrey Marshall, of 
Kentucky. He was charged with the commission of a grave of¬ 
fense against the law of his State. The Senate refused to ex^Del, 
on the ground that it had ‘-no jurisdiction” to do so. 

WILLIAM N. ROACH. 

In 1893 proceedings were set on foot in the Senate looking to 
the expulsion of William N. Roach, a Senator from North Dakota. 
A long and exceedingly interesting discussion followed, but the 
proceeding was abandoned without coming to a vote and Roach 
served out his term. Not a solitary precedent in the American 
Congress was cited in support of the proposition to expel. There 
was no precedent. 

O. B. MATTESON. 

Matteson had resigned in the Thirty-fourth Congress before a 
resolution of expulsion was passed. He was charged with a grave 
offense—an offense inconsistent with his trust and duty as a mem¬ 
ber. He was reelected to the Thirty-fifth Congress and took his 
seat without question or objection. 

In the Thirty-fifth Congress a resolution of expulsion was pro¬ 
posed against him. The case went to a committee, and that com¬ 
mittee, of which our honored colleague, Mr. Grow, was a mem¬ 
ber, in a somewhat elaborate argument, reported against the 
expulsion of Matteson on the ground that the Thirty-fifth Congress 
had no right to expel, because the offense was committed in the 
previous Congress, and did not relate to any violation of his trust 
or duty as a member of the Thirty-fifth Congress. 

The resolution reported was to the effect that it was inexpedient 
for the House to take any further action in regard to the resolu¬ 
tion proposing to expel O. B. Matteson, and the House never did 
take any further action, excepting to lay the resolution on the 
table, and Matteson served through the Thirty-fifth Congress. 

BROOKS AND AMES CASES. 

In the next place, we have the Brooks and Ames cases. They 
were cases in which charges had been made against Oakes Ames 
and James Brooks of corruption in connection with Credit Mo- 
bilier, and a special committee of five took the cases and reported 
in favor of expulsion. 

Thereupon, the Judiciary Committee, which had taken up a 
resolution respecting Colfax, reported on the Ames and Brooks 
cases, with an elaborate argument setting out that the House had 
no right to expel, and gave many reasons, among others that it 
was an imposition of a qualification not fixed by the Consitution. 
They laid down the same proposition that can rightfully be urged 
against expulsion here, if the minority of this committee is right. 

On February 18, 1873, the special committee submitted an ela^ 
4009 



57 

orate report, concluding with the following preamble and resolu¬ 
tions, viz: 

1. Whereas Mr. Oakes Ames, a Representative in this House from the State 
of Massachusetts, has been guilty of selling to members of Congress shares 
of stock in the Credit MobiUer of America for prices much below the true 
value of such stock, with intent thereby to influence the votes and decisions 
of such members in matters to be brought before Congress for action: There¬ 
fore, 

Resolved^ That Mr. Oakes Ames be, and he is hereby, expelled from his seat 
as a member of this House. 

2. Whereas Mr. James Brooks, a Representative in this House from the 
State of New York, did procure the Credit Mobilier Company to issue and 
deliver to Charles H. Neilson, for the use and benefit of said Brooks, 60 
shares of the stock of said company at a price much below its real value, well 
knowing that the same was so issued and delivered with intent to influence 
the votes and decisions of said Brooks as a member of the House in matters 
to be brought before Congress for action, and also to influence the action of 
said Brooks as a Government director in the Union Pacific Railroad Com¬ 
pany: Therefore, 

Resolved, That Mr. James Brooks be, and he is hereby, expelled from his 
seat as a member of this House. 

Mr. Sargent, of California, offered the following substitute: 

Whereas by the report of the special committee herein it appears that the 
acts charged as offenses against members of this House in connection with 
the Credit Mobilier occurred more than five years ago, and long before the 
election of such persons to this Congress, two elections by the people having 
intervened; and whereas grave doubts exist as to the rightful exercise by this 
House of its power to expel a member for offenses committed by such mem¬ 
ber long before his election thereto, and not connected with such election: 
Therefore, 

Resolved, That the special committee be discharged from the further con¬ 
sideration of this subject. 

Resolved, That the House absolutely condemns the conduct of Oakes Ames, 
a member of this House from Massachusetts, in seeking to procure Congres¬ 
sional attention to the affairs of a corporation in which he was interested, 
and whose interest directly depended upon the legislation of Congress, by 
inducing members of Congress to invest in the stocks of said corporation. 

Resolved, That this House absolutely condemns the conduct of James 
Brooks, a member of this House from New York, for the use of his position 
of Government director of the Union Pacific Railroad and of member of this 
House to procure the assignment to himself or family of stock in the Credit 
Mobilier of America, a corporation having a contract with the Union Pacific 
Railroad, and whose interests depended directly upon the legislation of Con¬ 
gress. 

They could not say that the things complained of were unrelated 
to these men as members, because at the time of their occurrence 
they were members not of the House that was then considering 
the resolutions, but of a previous House. The result was that the 
resolutions did not refer to any claim that these facts had no 
relation to Ames and Brooks as members. The resolution de¬ 
claring in its preamble the grave doubt of the House as to its right 
to expel under those circumstances was substituted for the original 
resolution by a vote of 115 to 110. Thereupon, a motion was made 
to lay the preamble of the substitute on the table—that is to say, 
the proposition was made to vote down the principle declared in 
that substitute, that the House had no jurisdiction. 

That motion was lost by a vote of 79 to 123, and Mr. McCullough 
was the only person who, in the progress of the vote, gave his 
reasons for voting “no,” and he said he voted “no” because he 
doubted the power of the House to expel. Thereupon, a motion 
was made to adopt the preamble, and that motion failed to carry 
by a vote of 98 to 115, a very much smaller majority than that by 
which the motion to lay it on the table was lost. The inference 
from these two votes is that as to this particular proposition there 
was uncertainty in the minds of the members and they were not 
ready to make a definite declaration. Thereupon, the House by 
an overwhelming majority adopted the resolutions of condemna¬ 
tion. 


4009 


58 


The sum and substance of it all is, that the House in the Ames 
and Brooks case, where, as we apprehend, history and all authority 
declare the proof of guilt was practically conclusive, refused to 
adopt the report of the committee in favor of expulsion, and 
merely censured the offending members. 

As indicating the views of eminent and able members of the 
House on this question, we quote the following from the debate 
on the Ames and Brooks case: 

Mr. McCrary. Now, sir, in this case, if the facts which the committee 
have found are true, the purpose and object of these corrupt transactions 
was to secure influence not alone in the Fortieth Congress, but in STibsequent 
Congresses as well. The Union Pacific Railroad Company and the Credit 
Mobilier expected to require, perhaps not positive legislation, but they desired 
to prevent unfriendly legislation in all these Congresses. I have no doubt 
that they would have been glad if they had had the power to prevent this 
present investigation. 

Without discussing the general question of jurisdiction, about which I con¬ 
fess I have some difficulty, I am perfectly satisfied to rest the jurisdiction of 
the Iloiise in this case upon the ground which I have just stated. 

Mr. Farnsworth. Mr. Speaker, since I first examined the subject of the 
right of the House of Representatives to expel a member under that pro¬ 
vision of the Constitution w’hich authorizes each House to “punish its mem¬ 
bers for disorderly behavior,” and “with the concurrence of two-thirds ex¬ 
pel a member,” my conviction has been growing stronger and stronger that 
this House has no j urisdiction of an offense committed by a person before 
he was a member of this body. I do not propose to enlarge upon that sub¬ 
ject. In reference to this question, I concur in the conclusion of the Judi¬ 
ciary Committee, whose report in another case was yesterday read to the 
House. 

Mr. Bingham. Gentlemen in this connection have referred to Story. I do 
not propose to read at any great length from him. I am not unmindful of the 
fact that this lamented man, so full of learning, often crowded into his pages 
so much of the text of others with whose writings he was familiar that a 
doubt often arises as to his true and certain meaning. But I do not hesitate 
to say that every thoughtful man in America who reads the text of Story 
will come to the conclusion that upon the question under consideration this 
House has no power whatever over any member of this body except the 
power expressly given by the text of the Constitution and by the laws of the 
United States passed under the Constitution. 

Story says, quoting from the Constitution: “Each House may determine 
the rules of its proceedings, punish its members for disorderly behavior.” 
Punish its members, not the members of another House, but punish its mem¬ 
bers; not a member of the Fortieth Congress: not a member of the Thirty- 
ninth Congress; not a member of the Thirty-eighth Congress; “punish its 
members for disorderly behavior, and with the concurrence of two-thirds 
expel a member.” * * * 

“ No person can doubt the propriety of the provision authorizing each House 
to determine the rules of its own proceedings. If the power did not exist it 
would bo utterly impracticable to transact the business of the nation either 
at all, or at least with decency, deliberation, and order. The humblest assem¬ 
bly of men is understood to possess this power; and it would be absurd to de¬ 
prive the councils of the nation of a like authority. But the power to make 
rules would bo nugatory unless it was coupled with a power to punish for 
disorderly behavior or disobedience to those rules.” 

Now, how could a man who was not a member of your body at all be 
guilty of misbehavior as a member of it or of disobedience to your rules be¬ 
fore he came to be a member of it? It is useless to waste words upon such a 
proposition. Story goes on: “And as a member might bo so lost to all 
sense of dignity and duty as to disgrace the House by the grossness of his 
conduct, or interrupt its deliberations by perpetual violence or clamor, the 
power to expel for very aggravated conduct was also indispensable, not as a 
common but an ultimate redress for the grievance.” 

From whom? From a member of this body. For what? For misconduct, 
for crime if you please, too grievous to bo put up with or borne while ho was 
a member of that body. Gentlemen have referred to Rawle. Rawle refers 
to the same provision of the Constitution, and says: 

“ It has not been precisely settled what must be the disorderly behavior to 
incur punishment, nor what kind of punishment is to be inflicted; but it can 
not be doubted that misbehavior out of the walls of the House or within 
them when it is not in session would not fall within the meaning of the Con¬ 
stitution.” 

There is an authority cited by the committee. I think it goes too far, but 
It does not sustain the committee. I stand upon the ground that a member 
of this body during his membership may be expelled for any crime he may 
4009 


59 


have committed against the laws of his country or against the rules and au¬ 
thority and dignity of this House after his election to this, not to another 
House. And that is as far as, under the obligations of my oath, I dare go. 
And I venture the opinion that when the question comes to be understood 
by the American people, that will be as far as any House of Representatives 
dare go. 

GEORGE Q, CANNON. 

But I tliink a more significant case still than that—significant 
in more senses than one—was the case of Cannon, in the Forty- 
third Congress. George Q. Cannon had the certificate as Dele¬ 
gate from Utah. A feeble effort was made to prevent his being 
sworn in. There was no evidence that he had ever violated any 
law, and nothing more than a moral objection could be urged 
against him. Maxwell contested his seat on the theory that Can¬ 
non was ineligible, and that he, Maxwell, being the only eligible 
candidate, was therefore elected. His pretensions on that ground 
were promptly disposed of against him. 

The committee brought in a report that Cannon was elected 
and returned. This was in May, 1874. The minority of the com¬ 
mittee insisted that he was entitled to the seat which he occupied. 
The resolution of the minority was adopted by a small majority, 
as against the resolution that he was elected and returned. Some 
of the best, strongest, and ablest men in the House voted “no” 
on that proposition; among them, of those who are now in public 
life, were Burrows, Frye, Harmer, and Hoar. 

The suggestion was made that the proper proceeding was to ex¬ 
pel, if Cannon was a polygamist; and the House permitted itself 
to believe, since Cannon was already in his seat, that that was the 
proper course. 

A committee was at once appointed to examine into the question 
as to whether or not he was a polygamist in order that they might 
expel him. 

That committee was appointed in May, 1874, and on the 21st 
day of January, 1875, it reported in favor of what they called ex¬ 
clusion, but what was, of course, expulsion, because ho was 
already in. They found he w'as a polygamist. The minority re¬ 
port, which accompanied the majority report, opposed expulsion 
bn three grounds. 

First. Because the House had in the preceding session declared 
that Cannon was entitled to a seat. 

Having declared that he was entitled to his seat, it would be 
inconsistent to expel him, since there was no intervening circum¬ 
stance which changed his status at the date of this report from his 
status when the House confirmed his right to a seat. 

Second. That when Utah was created as a Territory it was a 
Mormon community, and Congress knew it and had a right to ex¬ 
pect that it would send a Mormon Delegate. It therefore had no 
right to protest now that the Mormon had come. 

Third. We here quote the language of the minority: 

But a graver question than those we have considered is the question 
whether the House ought, as a matter of policy or to establish a precedent, 
expel either a Delegate or a Member on account of alleged crimes or immoi’al 
practices unconnected with their duties or obligations as Members or Dele- 

g ates when the Delegate or Member possesses all the qualifications to entitle 
im to his seat. 

There is more along the same line in this report. 

Three weeks later this case was called up for consideration. 
Mr. Loughridge, of Iowa, raised the question of consideration, 
and the House refused to take it up by an overwhelming vote, 
only 21 members voting in favor of it. 

Thus we see that the House, which thought in May that it 
4009 


CO 


might purify itself or protect itself just as well by expulsion at a 
later day, discovered that the very action which it had taken was 
turned into a weapon against it when it undertook at that later 
day to bring about expulsion, and Cannon sat until the end of his 
term. Will history repeat itself? It took the House several years 
to rid itself of Cannonr Will it be as deliberate in this instance? 

SCHUMACHER AND KING. 

This was a case where Schumacher and King, members of the 
House, were charged with corruption in connection with the China 
mail service. 

The report of the Committee on the Judiciary was filed August 
9, 1879. 

In declaring against the right of expulsion, it said: 

Your committee are of opinion that the House of Representatives has no 
authority to take .iurisdictioii of violations of law or offenses committed 
against a previous Congress. This is purely a legislative body and entirely 
unsuited for the trial of crimes. 

The fifth section of the first article'of the Constitution authorizes “ each 
House to determine the rules of its proceedings, punish its members for dis¬ 
orderly behavior, and, with the concurrence of two-thirds, expel a member.” 
This power is evidently given to enable each House to exercise its constitu¬ 
tional function of legislation unobstructed. It can not vest in Congress a 
jurisdiction to try a member for an offense committed before his election; 
for such offense a member, like any other citizen, is amenable to the courts 
alone. 

Within four years after the adoption of the first ten amendments to the 
Constitution, Humphry Marshall, a Senator of the United States from Ken¬ 
tucky, -was charged by the legislature of his State with the crime of perjury, 
and the memorial was transmitted by the governor to the Senate for its ac¬ 
tion. The committee to whom it was referred reported against the jurisdic¬ 
tion of the Senate, and say: 

“That in a case of this kind no person can be held to answer for an infa¬ 
mous crime unless on a presentment or indictment of a grand jury, and that 
in all such prosecutions the accused ought to be tried by an impartial jury of 
the State or district wherein the crime shall have been committed. Until he 
is legally convicted, the principles of the Constitution and of the common 
law concur in presuming that he is innocent. And they are also of the opin¬ 
ion that, as the Constitution does not give jurisdiction to the Senate, the 
consent of the party can not give it, and that therefore the said memorial 
ought to be dismissed.” 

The minority report did not combat the position of the majority 
in so far as this case is concerned, as the following extract will 
show: 

That the only question now presented to the House is the question of ju¬ 
risdiction, which question arises under the last clause of section 5 of Article I 
of the Constitution: 

“Each House may determine the rules of its proceedings, punish its mem¬ 
bers for disorderly behavior, and, with the concurrence of two-thirds, expel 
a member.” 

It will be seen that there are no words of limitation on the power to expel, 
which seems to have been left to the good sense and discretion of each House, 
In other wmrds, does not the Constitution refer rather to the fitness of the 
member to hold the office, resting on considerations of public justice and 
policy, than to the time of his election? Yet the undersigned do not deny 
but that there are limitations on the power of this House arising from the 
circumstances of particular cases and the relations of this House to the con¬ 
stituency of an accused member; therefore, as will be seen, the undersigned 
need not go further in this case than to assert jurisdiction, because the offenses 
complained of were not known to the constituents of the members in question 
until after their election. 

Much is said, Mr. Speaker, about the moral side of this ques¬ 
tion. Doubtless it has such a side; and if that were the only con¬ 
sideration before us, the House might take the same action it will 
take. I do not hesitate, Mr. Speaker, to submit this proposition 
to the candid judgment of the House and before the bar of his¬ 
tory. 1 am profoundly convinced that I am right and history 
4009 


61 


will so declare ib. The House can no more safely part with this 
power than it can part with any other power it possesses. 

This touches its very vitality; if it loses it, it is in certain con¬ 
ceivable instances absolutely powerless. We are told it is a power 
that may be abused. What power does the House possess that it 
has not at some time abused? What branch of the Government 
is it that, having power, has not abused it? What man, what 
body of men, clothed with a little brief authority has not made 
an unwise use of that authority? But shall they therefore be 
shorn of power? It is a mighty question, it is a question of gov¬ 
ernmental life, not to be lightly dealt with or inconsiderately 
answered. 

The case of Roberts sinks into insignificance in its presence. If 
we do not exclude this man, we strike down one of the most vital 
and necessary powers that belong to a legislative body. Let not 
such a thing be done. If it is not we may be sure that never 
again -while the spirit of civilization dominates this Republic will 
any defiant violator of the law, under cover of religion or any 
other claim, thrust himself into public view, nor will any polyga¬ 
mist knock for admission at the door of Congress. [Applause.] 

At the conclusion of the dehate. 

Mr. TAYLER of Ohio. I move the previous question on the 
resolution and substitute. 

The SPEAKER. The gentleman from Ohio moves the previous 
question on the resolution reported by the majority and the sub¬ 
stitute therefor reported by the minority. 

Mr. LACEY. Mr. Speaker- 

Mr. RICHARDSON. Did you not include the amendment? 

Mr. LACEY. No, sir. 

Mr. RICHARDSON. Did the gentleman from Ohio not include 
in his demand for the previous question that the amendment should 
be included? I so understood the gentleman from Ohio. 

Mr. LACEY. He did not. 

The SPEAKER. There is nothing before the House, the Chair 
will state, but the resolution reported by the majority and the 
substitute reported by the minority; and the gentleman from Ohio 
demands the previous question on those two resolutions. 

Mr. TAYLER of Ohio. Mr. Speaker, I withdraw that motion, 
and will yield to the gentleman from Iowa solely for the purpose 
of offering the amendment, upon which I will reserve the point of 
order. 

The SPEAKER. The gentleman from Ohio yields for the pur¬ 
pose of permitting the gentleman from Iowa to offer the amend¬ 
ment which the Clerk will report. 

Mr. TAYLER of Ohio. Reserving the point of order. 

Mr. BAILEY of Texas. What is it to be offered as an amend¬ 
ment to? 

Mr. LACEY. It will be stated in a moment. 

Mr. TAYLER of Ohio. It will be offered as an amendment to 
the resolution of the majority. 

The SPEAKER. The amendment will be read for the informa¬ 
tion of the House. 

The Clerk read as follows: 

Insert In line 4, page 1, after the word “ and,” the following: “ ho is ex¬ 
pelled, and;” so as to read: ^ , 

^^Besolved, That under the facts and circumstances In this case Brigham 

4009 



62 


H. Roberts, Representative-elect from the State of Utah, ought not to have 
or hold a seat in the House of Representatives, and he is hereby expelled, and 
that the seat to which he was elected is hereby declared vacant.” 

Mr. TA YLE R of Ohio. Upon that amendment I make the point 
of order that it is not germane to the resolution which it seeks to 
amend. 

The SPEAKER. The gentleman from Iowa offers the amend¬ 
ment just read to the resolution reported by the majority, and the 
gentleman from Ohio makes the point of order that it is not ger¬ 
mane to the resolution. The Chair desires to know if the gentle¬ 
man from Ohio withdrew the demand for the previous question? 

Mr. TAYLER of Ohio. I did. 

The SPEAKER. Very well. Then the point of order is debat¬ 
able. The Chair will hear the gentleman from Ohio. 

Or * *» * * ■ * 

Mr. TAYLER of Ohio. I desire to be heard for a moment. 

The SPEAKER. The gentleman from Ohio is recognized. 

Mr. TAYLER of Ohio. I make the point of order upon this 
amendment, Mr. Speaker, that it is not germane to the resolution. 
The resolution provides for the exercise of a well-defined power of 
the House of Representatives, to exclude a member elected from 
its councils. That is one great power allowed to the House; the 
amendment seeks to invoke another great power of the Plouse, 
entirely independent, namely, the power to expel. 

Now, then, the power to expel can in no way be connected with 
the power to exclude. They are entirely different and separate 
operations and efforts upon the part of the House of Representa¬ 
tives. Similar questions have been decided in this House, and I 
do not know that there is any doubt about the proposition that a 
resolution to expel is not germane to a resolution to exclude. 

[Mr. LACEY addressed the House.] 

Mr. DALZELL. Mr. Speaker, if the Speaker has any doubt 
about this question I would be glad to be heard for a few mo¬ 
ments. If he has not, I do not want to trespass on the patience of 
the House. 

The SPEAKER. The Chair has no doubt about the question. 

Mr. DALZELL. Then I do not desire to be heard. 

The SPEAKER. The Chair wall call attention to one or two 
facts preliminary to the decision of this question. We have two 
propositions pending before the House—one of exclusion, which is 
the proposition of the majority, and one in which we are served 
with notice that expulsion will be asked for, but involving first 
the swearing in of Mr. Roberts. 

The resolution of the minority does not contain any element of 
expulsion, but notice is served by the minority that so soon as the 
oath is administered to Mr. Roberts his expulsion will be moved. 
The propoisition offered by the gentleman from Iowa [Mr. Lacey] 
adds to the proposition recommended by the majority the idea of 
expulsion. 

The proposition as it stands will deny Mr. Roberts a seat, wull 
not allow him to sit for one instant in this House. That is the 
proposition of the majority. The amendment offered by the gen¬ 
tleman from Iowa [Mr. Lacey] does not deny him a seat alone, 
but says, with the majority, that ho must not have or hold a seat, 
but that he must also be excluded from his seat. 

The proposition of the majority, which denies Mr. Roberts a 
seat, can be carried through this House, under the rules, by a 
4003 


63 


majority vote. With the amendment of the gentleman from Iowa 
psir. Lacey] added, that of expulsion, it will require a two-thirds 
vote to carry the amended resolution. Does anyone contend that 
changing a resolution from a condition where a mere majority 
can carry it through.to a resolution which will require a two- 
thirds vote to carry it through—that such an amendment is ger¬ 
mane to the original proposition? 

The Chair does not entertain a single doubt but that this is not 
germane to the original resolution. [Applause.] 

The gentleman from Iowa [Mr. Lacey] says, however, that 
this involves a question above and beyond the rules, being a ques¬ 
tion of the highest privilege. 

The Chair holds with the gentleman from Iowa [Mr. Lacey] 
that it is a constitutional question and one of the highest privi¬ 
lege, but this body has pursued constitutional methods in treat¬ 
ing it, and is now, through a committee appointed in recognition 
of this high right, considering the matter, and that committee, in 
the discharge of its great duty to this House under the Constitu¬ 
tion, has brought in its two propositions. 

The Chair therefore holds that the amendment is out of order, 
and recognizes the gentleman from Ohio [Mr. Tayler], 

Mr. LACEY. With all due respect to the Chair, I appeal from 
the decision of the Chair. 

The SPEAKER. Gentlemen, let us move with calmness and 
care. The gentleman from Iowa [Mr. Lacey] rises to exercise 
a sacred right, that of appeal from the decision of the Chair. 

Mr. TAYLER of Ohio. I move to lay the appeal on the table, 
Mr. Speaker. 

The SPEAKER. And the gentleman from Ohio [Mr. Tayler] 
moves to lay the appeal on the table. The question is on agreeing 
to the motion made by the gentleman from Ohio, to lay the appeal 
of the gentleman from Iowa on the table. 

The question being taken, the Speaker announced that the ayes 
seemed to have it. 

Mr. LACEY. A division. 

The SPEAKER. The gentleman from Iowa demands a divi¬ 
sion. On this point, however, the Chair desires to say that he has 
the right to order tellers and will not count on a matter involving 
his decision. The Chair, therefore, will appoint as tellers the 
gentleman from Ohio [Mr. Tayler] and the gentleman from 
Iowa [Mr. Lacey]. 

The telfers having taken thmr places, the House proceeded to 
divide. • 

Pending the announcement of the result, 

Mr. LACEY said: JMr. Speaker, in view of the evident spirit of 
the House on the question, I withdraw the appeal. 

The SPEAKER. The gentleman from Iowa withdraws his ap¬ 
peal. 

Mr. TAYLER of Ohio. Mr. Speaker, I move the previous ques¬ 
tion on the resolution and substitute. 

The SPEAKER. The gentleman from Ohio moves the previous 
question on tlie original resolution and the substitute. 

The previous question was ordered. 

The SPEAKER. The question is on agreeing to the substitute 
reported by the minority. 

Mr. RICHARDSON. Now, let us adjourn. There will be two 
yea-and-nay votes. 

Several Members. Oh, no! 

4009 


The SPEAKER. As many as are in favor of the adoption of 
the substitute reported by the minority will vote “aye”- 

Mr. SLAYDEN. The yeas and nays. 

The yeas and nays were ordered. 

Mr. LANHAM. We should like to have-the resolution read. 

The SPEAKER. The gentleman from Texas calls for the read¬ 
ing of the minority substitute. Without objection, it will be 
again read. 

The Clerk read as follows: 

Resolved^ That Brigham H. Roberts, having been duly elected a Representa¬ 
tive in the Fifty-sixth Congress from the State of Utah, with the qualifications 
reqxiisite for admission to the House as such, is entitled, as a constitutional 
right, to take the oath of office prescribed for members-elect; his status as a 
polygamist, unlawfully cohabiting with plural wives, affording constitutional 
ground for expulsion, but not for exclusion from the House. 

The SPEAKER. The question is on the adoption of the substi¬ 
tute which has been read. 

The question was taken, and there were—yeas 81, nays 244, not 
voting 29. 

******* 

The result of the vote was then announced as above recorded. 
[Applause.] 

The SPEAKER. The question now is on the resolution reported 
by the majority. 

The resolution is as follows: 

Resolved, That under the facts and circumstances of this case, Brigham H. 
Roberts, Representative-elect from the State of Utah, ought not to have or 
hold a seat in the House of Representatives, and that the seat to which he 
was elected is hereby declared vacant. 

Mr. TAYLER of Ohio. Mr. Speaker, on that I demand the yeas 
and nays. 

The yeas and nays were ordered. 

The question was taken; and there were—yeas 208, nays 50, not 
voting 86. 

So the resolution was agreed to. 

it * * * * * * 

The result of the vote was then announced as above recorded. 
[Loud applause.] 

On motion of Mr. TAYLER of Ohio, a motion to reconsider the 
vote by which the resolution was agreed to was laid on the table. 

4909 "" 


